ICMM Indigenous Peoples and Mining GPG.pdf - SDSG

GOOD PRACTICE GUIDEINDIGENOUSPEOPLES ANDMININGGuidance 2010-3

GOOD PRACTICE GUIDEINDIGENOUSPEOPLES ANDMINING

1 2 3CONTENTSFOREWORDMESSAGE FROM ICMM TO COMMUNITIES WHO MAY BE AFFECTED BY MININGiiiii1 INTRODUCTION 11.1 Why produce a Good Practice Guide focusing specifically on Indigenous Peoples? 31.2 The ICMM Position Statement 31.3 Who are Indigenous Peoples? 51.4 International rights for Indigenous Peoples 71.5 Indigenous Peoples and mining 91.6 How the Guide was prepared 111.7 Scope of the Guide 131.8 Structure of the Guide 132Engagement and Indigenous participation 152.1 Introduction 162.2 The principles of good engagement 162.3 Making initial contact 182.4 Indigenous Peoples’ involvement in decision-making 192.5 The practicalities of engaging with Indigenous Peoples 252.6 Building engagement capacity in companies 302.7 Managing workforce and contractor behaviour 322.8 Some engagement challenges 333Laying the groundwork 373.1 Introduction 383.2 Determining relevant Indigenous Peoples’ rights and interests 383.3 Baseline studies 45Good Practice Guide Indigenous Peoples and Mining

4 5 64Agreements 524.1 Introduction 534.2 The business case for agreements 534.3 What makes for a successful agreement? 554.4 Making agreements 574.5 Components of agreements 604.6 Implementing agreements 725Managing impacts and sharing benefits 735.1 Introduction 745.2 Impact mitigation and enhancement 745.3 Strengthening the community asset base 815.4 Cultural preservation 895.5 Environmental protection, rehabilitation and monitoring 915.6 Preparing for mine closure 925.7 Addressing discrimination and historical disadvantage 9367Dealing with grievances 956.1 Introduction 966.2 Why are grievance mechanisms important? 966.3 Sources of potential disagreement or conflict 986.4 Designing grievance mechanisms 1006.5 Involving other parties 104conclusion 106Appendix A: ICMM Position Statement on Mining and Indigenous Peoples 107Appendix B: Acronyms 110Appendix C: Further resources 111Acknowledgements 119Good Practice Guide Indigenous Peoples and Mining

forewordICMMThis Guide represents a key milestone on ajourney that began for ICMM in 2004, whenwe started working to support moreconstructive relationships betweenIndigenous Peoples and mining companies.Since then we convened two internationalroundtables, published a Mining andIndigenous Peoples’ Review and undertookexternal consultations before publishingan ICMM Position Statement on Mining andIndigenous Peoples in 2008.That position statement was approved by ICMM’sCouncil of CEOs in 2008, and signalled a desire formore constructive relationships between the miningand metals industry and Indigenous Peoples basedon respect, meaningful engagement and mutualbenefit. Developing implementation guidance wasthen set as our next task. This Guide is theoutcome.We recognize that each community has uniqueattributes and that various complexities may arise inareas where ICMM members are present. In thisregard, the Guide is not intended to outline a onesize-fits-allapproach but to be adaptable bycompanies and communities to their owncircumstances.The Guide is a milestone rather than an end point.We intend to support dissemination and uptake ofthe guide to help ensure that it makes a differencefor communities on the ground. ICMM will alsocontinue to engage on Indigenous Peoples issues.We look forward to working collaboratively with ourmembers and Indigenous Peoples to support itsuptake.Lastly, a work such as this takes tremendous effort.Thanks are due to all those who have contributed –the Advisory Group, Aidan Davy and Claire Whitewithin the Secretariat and the many others whohave shared their thoughts along the way.Indigenous Peoples Advisory GroupIn producing this Guide, ICMM has built onthe vision embodied in its PositionStatement for constructive relationshipsbetween Indigenous Peoples and themining and metals industry which arebased on respect, meaningful engagementand mutual benefit and which haveparticular regard for the specific andhistorical situation of Indigenous Peoples.We welcome ICMM member companiescommitment to establishing theserelationships and believe that the Guideprovides a useful resource for an ongoingpositive dialogue.As individuals with varied and deep personalrelationships and professional experience withIndigenous Peoples, we recognize the necessity formining companies to develop and maintainrespectful relationships with the communities thatmay be affected by their activities.Drawn from our experiences in Africa, Australasia,Oceania, Latin America and North America, we havecontributed our knowledge, advice and counsel onboth process and substance throughout thedevelopment of this document over the last twoyears.From the outset, we have remained independent ofthe process. We have always retained the right totake exception to the way in which the Guidedeveloped or the final content. On balance, however,we feel that it offers sound guidance that – ifimplemented effectively – has the potential toestablish constructive and mutually respectfulrelationships between Indigenous Peoples andmining companies.We understand that this Guide is part of a widerprocess and will be a ‘living document’ to bereviewed based on experience with itsimplementation. We encourage Indigenous Peoplesand all mining companies – whether or not they areICMM members – to utilise the guidance in goodfaith, and to learn from the experience.Tony HodgePresident, ICMMMike Rae, Canada; Cássio Inglez de Sousa, Brazil;Meg Taylor, Papua New Guinea; Mick Dodson, Australia;Lucy Mulenkei, AfricaiGood Practice Guide Indigenous Peoples and Mining

Message from ICMM to communitieswho may be affected by miningThe International Council on Mining andMetals (ICMM) is pleased to present ourGood Practice Guide: Indigenous Peoplesand Mining (the Guide). ICMM is anorganization representing 19 of theworld's leading mining and metalscompanies, as well as 30 other regional,national and commodity associations.ICMM and its members collectively seekto improve global mining industrypractices by balancing the various social,cultural, environmental and economicneeds of all parties affected by miningoperations.The Guide stems from a commitment by ourmembers to ensure the responsibleextraction/production of minerals and metals. At itsheart is a commitment to establishing positiveengagements and relationships with IndigenousPeoples. This is reflected in ICMM’s PositionStatement on Mining and Indigenous Peoples, May2008 (see Appendix A). We are now building uponthe foundation of the commitments set out in thePosition Statement with the development of thisGuide. Our intention is to provide information andpractical direction to staff and employees ofresponsible mining companies, to guideappropriate and respectful engagement withIndigenous Peoples. Our hope is that the Guide willstimulate discussion and promote cross-culturalunderstanding between indigenous communitiesand mining companies.We would respectfully encourage you to respond inthe spirit of good faith, which was the foundationfor the development of this Guide, when enteringinto discussions with responsible miningcompanies. The Guide may not be perfect and youmay, upon reflection, think “some aspects of thiswill not work for us”. We would hope that youwould then use this Guide to assist in developing aprocess to engage with mining companies thatworks for your community. This, in turn, will assistresponsible mining companies in their efforts toestablish positive dialogue with you, as a beginningfor mutually beneficial and enduring relationships.The mining and metals industryThe mining and metals industry engages in theextraction and processing of mineral resourceswhen the size and quality of a mineral depositprovide for an economically feasible project. Theextracted minerals are then refined into materialsused for the production of a variety of goods for theglobal market.Mineral extraction and refinement is nearly as oldas human civilization. Mining can take place on thesurface or underground. Depending upon where inthe world mining takes place, mining can rangefrom small groups of people using traditionalmethods to a large and sophisticated operationwith modern infrastructure, technology andequipment, employing many workers. ICMM’smembers include many of the world’s largestmining companies and all apply modern industrialpractices.Good Practice Guide Indigenous Peoples and Miningii

Message from ICMM to communitieswho may be affected by miningAlthough not all ICMM members engage in the firsttwo stages, the broad sequence of activities in thelife cycle is usually as follows (see diagramopposite):• Stage 1 – Prospecting: This usually involves asmall number of people (prospectors orexploration companies) coming into an area andlooking for specific signs of the presence ofcertain minerals they are searching for. Normally,if they find something of interest they will stake alegal claim whereby they express a specificinterest in an area with a view to seeking apermit to explore for mineral deposits.• Stage 2 – Exploration: Mining explorationcompanies are typically smaller than the miningcompanies themselves and explore the potentialmineral deposits identified by the prospectors.Exploration may involve various activitiesincluding airborne surveys and drilling. Thepurpose of exploration is to determine the sizeand value of a mineral deposit. This is a high-riskoperation as only a few exploration efforts everidentify sufficient mineral deposits to warrant fullmining operations. This will be the stage whenyou first experience a significant mining presenceinside your territory. If the exploration companyprovides evidence of enough mineral potential todevelop a mine, then a major mining companymay become interested at this stage.• Stage 3 – Feasibility studies and construction:This is when major mining companies may comeinto your territory. They usually alreadysuccessfully operate mines in other places. Thecompany will first study the long-term economicviability of building and operating a mine in theregion. If the outcome of that study is that miningwould bring positive economic benefits to thecompany and can be achieved while meetingother responsibilities, then operating permits aresought and construction of the mine begins.• Stage 4 – Mine operation: This is the activephase of the mining sequence that usually lastsfor the lifetime of the resource that is beingextracted. It is at this stage that the minerals aremined (or extracted) using either surface (openpit), or underground (tunnel) methods.• Stage 5 – Closure and reclamation: Once therelevant resource has been extracted or in theevent that extracting the resource becomes nolonger economically viable, the mining project,will be phased out with a closure and reclamationplan. ICMM member companies develop theirclosure and reclamation plan early during theplanning, development and construction stage sothat it is ready for implementation long before theclosure stage approaches and can be updated asthe operation changes over time. This operationwill involve the ongoing presence of the miningcompany to ensure post-closure impacts areproperly managed.Throughout the process it is important that allcompanies involved engage with the localcommunity in such a way that a respectfullong-term relationship is established.Understanding indigenous cultural,social and environmental issuesOver time, mining companies have developed theirunderstanding of and sensitivity to how best tomanage and balance their economic needs withenvironmental considerations and the culturaltraditions of people in the areas in which theyoperate. ICMM members recognize that miningactivity has and will continue to affect the land,territories, resources and way of life of IndigenousPeoples. ICMM members also understand theimportance of maintaining a healthy and stablenatural environment to support local communitiesand particularly those wishing to retain atraditional lifestyle. A healthy natural environmentis a benefit to all people. These are importantlessons learned.In order to achieve this kind of stability, we mustfirst establish relationships with communities inwhich we work so that we may discuss thesematters on the basis of sound knowledge of thearea and its people in a respectful fashion. Onlythen may we begin to balance the needs andperspectives of culture, environment and economy.This Guide provides us with a starting point as partof a longer process, for moving ahead with theseimportant, long-term goals.iiiGood Practice Guide Indigenous Peoples and Mining

Typical sequence of activities in the life of a mineSTAGE 1ProspectingSTAGE 2ExplorationSTAGE 3Feasibilitystudies andconstructionSTAGE 5Closure andreclamationSTAGE 4MineoperationThe Guide is designed to be apractical and user-friendly toolto assist mining companiesGood Practice Guide Indigenous Peoples and Miningiv

Message from ICMM to communitieswho may be affected by miningBenefits of applying the GuideThe Guide is designed to be a practical and userfriendlytool to assist mining companies inunderstanding the need to be aware and respectfulof cultural, social, economic and politicalcomplexities associated with developing projectsin close proximity to indigenous communities.Our aim for this Guide is to provide miningcompanies with positive, practical andcomprehensive approaches to develop successfulrelationships with Indigenous Peoples.However, we realize there cannot be a singleapproach when building relationships withIndigenous Peoples, given the rich diversity ofIndigenous Peoples. The Guide is not simply aboutestablishing good relationships between a miningcompany and an indigenous community, but rathera means to help the mining company initiate orimprove the process of relationship building in arespectful and positive way. The Guide referencesa number of case studies that highlight bothsuccessful relationships and the consequences ofnot enjoying such success, which we can all drawlessons from.It is our wish that this Guide be considered a livingdocument. We welcome constructive feedbackbased on the practical experiences of itsapplication between indigenous groups andmining companies.The Guide is structured into thefollowing sections:1 Introduction: Presents the reasoning for theGuide, ICMM’s engagement with IndigenousPeoples and its Position Statement and relatedcommitments.2 Engagement and indigenous participation:Relates to the engagement between IndigenousPeoples and mining, addressing topics includingthe participation of Indigenous Peoples in thedecision-making processes (including FPIC),and makes specific recommendations foreffective and practical engagement withIndigenous Peoples, highlighting some of thekey challenges to effective engagement.3 Laying the groundwork: Focuses on the earlystages of relationship building and on theinformation needed for companies to facilitateinitial engagement and develop appropriateapproaches to deal with actual and anticipatedimpact of a project and how any potentiallynegative impact can be mitigated.4 Agreements: Discusses how companies andindigenous communities might look to putformal agreements in place to govern theirrelationship, including preliminary agreementsthat can serve as “stepping stones” to putting inplace a long-term agreement that mayencompass all of a mining project sequence.5 Managing impacts and sharing benefits:Addresses some practical aspects of managingthe impact of a mining project including, forexample, the preservation of local culture sitesand traditions, sharing the benefits arising froma mining project and creating opportunities forthe economic development of the localcommunity.6 Dealing with grievances: Outlines strategiesand mechanisms for dealing with communityissues and concerns about the relationship ormining projects.The Guide therefore seeks to assist companies todevelop their relationships with Indigenous Peoplesand their communities by outlining the means bywhich effective engagement can be establishedthroughout the project life cycle.vGood Practice Guide Indigenous Peoples and Mining

Mining company engagement sequenceIntroductionDealing withgrievancesEngagementand indigenousparticipationIndigenouscommunityManagingimpacts andsharingbenefitsLaying thegroundworkAgreementsFinal thoughtsWe hope this introduction has helped to explainthe purpose of the Guide. It is our intent that theGuide be used to help responsible companies toimprove relationships with Indigenous Peoples.We invite you to explore the Guide, consider ourapproach and assist us in our efforts to “get itright”.Thank youR. Anthony HodgeICMM PresidentGood Practice Guide Indigenous Peoples and Miningvi

1introductionAlla, a Nenets girl, kisses one of her family’s pet reindeer calves. Nadym Tundra, Yamal, Western Siberia, Russia1 Good Practice Guide Indigenous Peoples and Mining

1 INTRODUCTIONThis Good Practice Guide (the Guide) seeks toassist companies develop their relationships withindigenous peoples and their communities byoutlining the means by which effectiveengagement can be established throughout theproject life cycle.Responsible mining companies have recognized theneed for more respectful and constructiverelationships to ensure that when mining isundertaken on or near indigenous lands, the rightsand interests of Indigenous People are respectedand affected communities benefit from having amining operation in their area.In May 2008, ICMM approved a Position Statementon Mining and Indigenous Peoples. The PositionStatement stressed the need for constructiverelationships between the mining and metalsindustry and Indigenous Peoples based on respect,meaningful engagement and mutual benefit, withparticular regard for the specific and historicalsituation of Indigenous Peoples.The Guide has been prepared to support ICMMmembers in implementing the underlying vision andthe specific commitments set out in the PositionStatement. It is designed to assist mining andmetals companies navigate the cultural, social,economic and political complexities associated withdeveloping, operating and closing projects that areon or near indigenous land, or which otherwiseimpact on indigenous communities. It highlightsgood practice principles, discusses the challengesin applying these principles at the operational leveland provides real-world examples of how miningprojects have addressed these challenges.Although the primary audience for the Guide isICMM member companies, it has relevance to othercompanies operating in the sector, as well as torelated industries such as oil and gas andconstruction. It should also be a useful resource forIndigenous Peoples’ groups, governments, civilsociety organizations and consultants that engagewith the sector.Beyond ethical responsibility to thebusiness caseWhile acknowledging and respecting IndigenousPeoples’ rights and interests should be seen as firstand foremost an ethical responsibility, there are alsostrong business reasons for mining companies tostrive for good practice in this area.• In the ongoing drive to identify and develop newresources, mining companies are increasinglyactive in remote parts of the world where there maybe indigenous populations. Companies that have atrack record of being respectful to IndigenousPeoples and their rights and delivering positivedevelopment outcomes will likely find it easier tosecure the agreement of Indigenous Peoples’groups and government approvals for access tonatural resources.• In a growing number of countries, there is nowlegal recognition of the rights of IndigenousPeoples to negotiate the terms and conditionsunder which minerals development will take placeon their land. In some cases, this extends to alegally recognized right to grant or withholdconsent. Companies that have a poor reputation fordealing with Indigenous Peoples, or lack experiencein this area, are more likely to encounter delays anddifficulties in negotiating and finalizing agreements.• As has been shown on numerous occasions,companies that fail to respect Indigenous Peoples’rights and interests are also more likely to becomeembroiled in local and regional disputes andconflicts. Apart from jeopardizing the future ofindividual projects, this can lead to substantialreputational damage for a company nationally andinternationally.• Conversely, there are significant reputationalbenefits for individual companies and the industryas a whole from demonstrating leadership in thisarea. These benefits include improved relationswith governments and international organizations,and more constructive engagement with civilsociety groups.Good Practice Guide Indigenous Peoples and Mining2

1INTRODUCTION1.1 Why produce a Good Practice Guidefocusing specifically on IndigenousPeoples?In many respects, what constitutes good practice inrelation to Indigenous Peoples is the same as fornon-Indigenous Peoples. Regardless of where theyoperate, responsible companies aim to avoidimpacting negatively on communities and leave apositive legacy. The basic principles of goodengagement 1 are the same across the board (seesection 2.2), and many of the methodologies foridentifying and realizing development opportunitieswill apply in the context of dealings with bothIndigenous and non-Indigenous Peoples.Notwithstanding these common elements, there aresome compelling reasons for producing a guide thatfocuses specifically on Indigenous Peoples andmining.First, there is now widespread recognition at theinternational level that Indigenous Peoples havedistinct rights and interests, and a growingexpectation that these will be respected byresponsible companies. Second, through law,custom or a combination of both, IndigenousPeoples often have a special relationship to land,territories and resources on which companies wantto explore and mine. This can create specificobligations for companies, as well as presenting arange of unique challenges (and sometimesopportunities) that need to be understood andaddressed.Third, Indigenous Peoples often have culturalcharacteristics, governance structures andtraditional ways of interacting and decision makingthat sets them apart from the non-indigenouspopulation and which require companies to utilizeforms of engagement that are sensitive to thesecharacteristics.Fourth, Indigenous Peoples have historically beendisadvantaged, discriminated against anddispossessed of their land, and continue to bedisadvantaged relative to most other sections ofsociety. They are also likely to be more vulnerable tonegative impacts from developments, particularlythose that adversely impact culture and naturalresources. Addressing these issues requires specialattention to the interests and rights of indigenousgroups across all stages of the mining project lifecycle.1.2 The ICMM Position StatementThe ICMM Position Statement on Mining andIndigenous Peoples (see Appendix A) evolved out ofextensive stakeholder consultation and preparatorywork over several years. This included:• roundtable meetings on mining and IndigenousPeoples’ issues (2005, 2008)• publication of a Mining and Indigenous Peoples’Review (2005)• structured consultations around the draftPosition Statement (2006, 2007)• reviews of the legal status of Free, Prior andInformed Consent (FPIC).The Position Statement contains several keyRecognition Statements that acknowledge theethical imperative for having special regard forIndigenous Peoples’ needs and interests. TheseRecognition Statements have been given practicaleffect through nine Commitments. The PositionStatement commits ICMM members to abide bythese commitments, to the extent that they do notconflict with national or provincial laws.1For further information on good practice engagement, see for example: Zandvliet, L. and Anderson, M.B. 2009 Getting It Right: MakingCorporate–Community Relations Work. Sheffield: Greenleaf Publishing.3Good Practice Guide Indigenous Peoples and Mining

1ICMM Commitments1 Acknowledging and respecting the social, economic, environmental and cultural interests of IndigenousPeoples and their rights as articulated and defined within provincial, national and international laws.2 Clearly identifying and fully understanding the interests and perspectives of Indigenous Peoplesregarding a project and its potential impacts. Social impact assessments or other social baselineanalyses for projects which may impact on Indigenous Peoples will examine their particularperspectives and be based on consultation with them.3 Engaging and consulting with Indigenous Peoples in a fair, timely and culturally appropriate waythroughout the project cycle. Engagement will be based on honest and open provision of information,and in a form that is accessible to Indigenous Peoples. Engagement will begin at the earliest possiblestage of potential mining activities, prior to substantive on-the-ground exploration. Engagement,wherever possible, will be undertaken through traditional authorities within communities and withrespect for traditional decision-making structures and processes.4 Building cross-cultural understanding: for company personnel to understand Indigenous Peoples’culture, values and aspirations, and for Indigenous Peoples to understand a company’s principles,objectives, operations and practices.5 Encouraging governments where appropriate to participate in alleviating and resolving any problems orissues faced by Indigenous Peoples near mining operations.6 Designing projects to avoid potentially significant adverse impacts of mining and related activities andwhere this is not practicable, minimizing, managing and/or compensating fairly for impacts. Amongother things, for example, special arrangements may need to be made to protect cultural property orsites of religious significance for Indigenous Peoples.7 Seeking agreement with Indigenous Peoples and other affected communities on programs to generatenet benefits (social, economic, environmental and cultural), that is, benefits and opportunities whichoutweigh negative impacts from mining activities. Specific consideration will be given to customary landand resource use in situations where formal title may be unclear or where claims are unresolved. ICMMmembers will measure progress to ascertain that specified social benefits are being achieved and ifprograms are not achieving stated goals, seek agreed modifications to improve program effectiveness.In general, ICMM members will seek to build long-term partnerships with Indigenous Peoples, to findways to increase their participation as employees and suppliers, and to support self-empoweredregional and community development such as through education, training, healthcare, and businessenterprise support.8 Supporting appropriate frameworks for facilitation, mediation and dispute resolution. ICMM membersmay assist with or facilitate basic capacity building for Indigenous Peoples’ organizations near theiroperations. In general, Indigenous Peoples as well as communities as a whole will be provided with aclear channel of communication with company managers if they have complaints about a miningoperation and transparent processes through which to pursue concerns.9 Through implementation of all of the preceding actions, seek broad community support for new projectsor activities. ICMM members recognize that, following consultation with local people and relevantauthorities, a decision may sometimes be made not to proceed with developments or exploration even ifthis is legally permitted.Good Practice Guide Indigenous Peoples and Mining4

1 INTRODUCTION1.3 Who are Indigenous Peoples?The designation of “Indigenous Peoples” has cometo be recognized over the last few decades as adistinct societal category under international lawand in some countries’ national law.The term “Indigenous Peoples” has principally beenapplied to peoples who are considered to be thedescendants of the precolonial peoples of theAmericas, Australia and New Zealand, such asNative Americans, Inuit of the Arctic, forest peopleof the Amazon, Aboriginal Australians and the NewZealand Maoris. In various Asian and Africancountries, marginalized minority ethnic groups(often described as “tribal populations”), with aculture distinct from the national model and whohave historically occupied certain regions, are oftenalso referred to, or self-identify themselves, as“Indigenous Peoples” (e.g. Pygmy peoples in centralAfrica, San peoples in southern Africa, the Karenhill tribes in Thailand) .Some countries recognize Indigenous Peoples anduse this or related terms officially. For example,Latin American countries such as Venezuela, Peru,Colombia or Bolivia use the Spanish equivalent ofPueblos Indígenas, meaning “First Peoples”. “FirstNations” is an official term used in the USA andCanada, and “Aboriginal peoples” is a term used inAustralia and Canada. Other countries, by contrast,do not formally recognize the existence ofIndigenous Peoples within their borders (e.g.Malaysia, China, Botswana), or only recognize somegroups as “Indigenous” despite others also claimingthat label (e.g. Russia).Characteristics defining “IndigenousPeoples”The two most commonly cited internationaldocuments on the definition of Indigenous Peoplesare the study on the discrimination againstIndigenous Peoples (Jose Martínez Cobo, UNSpecial Rapporteur) and the ILO Convention 169.These documents highlight the following generalcharacteristics as partly and/or fully indicative ofIndigenous Peoples:• self-identification as indigenous• historical continuity with precolonial and/orpre-settler societies• a common experience of colonialism andoppression• occupation of or a strong link to specificterritories• distinct social, economic and political systems• distinct language, culture and beliefs• from non-dominant sectors of society• resolved to maintain and reproduce theirancestral environments and distinctive identities.These general criteria of Indigenous Peoples arepurposely inclusive and are thus meant toencompass the diversity of worldwide IndigenousPeoples’ experiences, while still separating“Indigenous Peoples” from other national minoritiesand providing a basis for the kinds of rights thatthey claim.The issue of setting a single definition for“Indigenous Peoples” has been extensively debatedin United Nations working group sessions over theyears and it has come to be officially accepted thatno single definition can fully capture the diversity ofIndigenous Peoples. However, the UN and otherregional intergovernmental organizations haveoutlined various defining characteristics ofIndigenous Peoples (see box opposite), emphasizingthe particular importance of self-identification.5Good Practice Guide Indigenous Peoples and Mining

1Bushman hunter in the Kalahari Desert, Namibia. Bushman are the Indigenous People of southern Africaand their traditional way of living is under threat.Good Practice Guide Indigenous Peoples and Mining6

1 INTRODUCTIONChallenges in applying a single definitionof indigenousIndonesia is an archipelago of 17,508 islands andhas hundreds of distinct native ethnicities,languages and dialects across the country. Forthese reasons it is usually problematic to use theword “indigenous” in an Indonesian context.The communities around BHP Billiton’s MaruwaiCoal Project in Central Kalimantan reflect thecountry’s demographic diversity. The area remainswidely populated by Dayaks, who are theindigenous inhabitants of Borneo. Companypersonnel generally use the word “local” or referspecifically to people in terms of their Dayak andBakumpai ethnicity as appropriate in reference tosurrounding communities.1.4 International rights forIndigenous PeoplesCommitment 1 of the ICMM Position Statementrequires members to acknowledge and respectIndigenous Peoples’ rights and interests asexpressed in provincial, national and internationallaw. As noted, the extent to which IndigenousPeoples are legally recognized and their rightsprotected varies widely between countries. ICMMmember companies commit to acknowledge andrespect the rights of Indigenous Peoples even ifthere is no formal recognition of these rights by ahost country, or if there is a divergence between acountry’s international commitments and itsdomestic law.At the international level there has been a strongdrive to define a body of rights that specificallyaddresses the situation of Indigenous Peoples.These rights have developed in response to thegrowing recognition within the internationalcommunity that Indigenous Peoples have sufferedprotracted and ongoing marginalization,discrimination and human rights abuses. This bodyof rights is primarily concerned with protectingcollective rights, whereas the focus of mostinternational human rights instruments is on theindividual.The legal status of different human rightsinstruments, their interpretation, how they interactwith national law and their applicability tocorporations are all complex topics that fall outsidethe scope of this Guide. For current purposes, it issufficient to note that internationally there is nowbroad recognition of the special status and rights ofIndigenous Peoples. Further, the trend isunmistakably towards strengthening the rights ofIndigenous Peoples and their capacity to have theserights enforced, upheld and respected bygovernments and third parties. The Guide is notintended to be a substitute for a full due diligenceprocess, which should include seeking advice fromlocal and international legal experts.7 Good Practice Guide Indigenous Peoples and Mining

1The main international instruments relating toIndigenous Peoples’ rights at the international levelare listed below, with links to guidance documentson the practical implications of thesedifferent instruments:• the 2007 United Nations Declaration on theRights of Indigenous Peoples:www.un.org/esa/socdev/unpfii/en/declaration.htmlKey rights articulated in these instruments includethe rights of Indigenous Peoples to:• self-determination• their lands, territories and resources• maintenance of their cultures, including theircultural heritage, and recognition of their distinctidentities• to be asked for their free, prior and informedconsent in decisions that may affect them.• International Labour Organization’s ConventionNo. 169 on Indigenous and Tribal Peoples:http://www.ilo.org/public/english/region/ampro/mdtsanjose/indigenous/derecho.htm• the Office of the United Nation’s High Commissionerfor Human Rights International Covenant on Economic,Social and Cultural Rights (1976):http://www2.ohchr.org/english/law/cescr.htm• the International Covenant on Civil and Political Rights:http://www2.ohchr.org/english/law/ccpr.htm• the International Convention on the Eliminationof All Forms of Racial Discrimination:http://www2.ohchr.org/english/law/cerd.htm• the Convention on Biological Diversity Akwé: KonGuidelines:www.cbd.int• UN Guidelines on the Protection of the CulturalHeritage of Indigenous Peoples:http://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdf• the American Convention on Human Rights:www.oas.org/juridico/English/treaties/b-32.html• Inter-American Court on Human Rights:www.worldlii.org/int/cases/IACHRGood Practice Guide Indigenous Peoples and Mining8

1 INTRODUCTIONInternational indigenous rights groupsThere are many international bodies that endorseand promote Indigenous Peoples’ rights and providestandards and guides on understanding IndigenousPeoples’ issues and how to approach working withinthe Indigenous Peoples’ environment. The UN has apremier body specifically dedicated to the rights ofIndigenous Peoples (UN Permanent Forum onIndigenous Issues: www.un.org/esa/socdev/unpfii).The World Bank group has guidelines and standardson development and indigenous communities suchas the IFC’s Performance Standards (PerformanceStandard 7: Indigenous Peoples), as does the AsianDevelopment Bank (The Bank’s Policy onIndigenous Peoples) and the Inter-AmericanDevelopment Bank (Operational Policy onIndigenous Peoples). The third generation of theGlobal Reporting Initiative likewise sets reportingstandards in relation to Indigenous Peoples’ rights(www.globalreporting.org/Home).There are also numerous international support andresource groups such as the International WorkGroup for Indigenous Affairs (www.iwgia.org), theIndigenous Peoples' Center for Documentation,Research and Information (www.docip.org), GlobalResponse (www.globalresponse.org), CulturalSurvival (www.culturalsurvival.org) and the ForestPeoples Programme (www.forestpeoples.org). Inaddition, many countries have governmentministries dedicated to the affairs of IndigenousPeoples.Further information sources on indigenous rights can be found inFurther resources, Appendix B.1.5 Indigenous Peoples and miningMining-related activities (exploration, development,resource extraction, processing and waste disposal,and closure) often take place on, or near,indigenous land. In Australia, for example, it hasbeen estimated by the Minerals Council of Australiathat 60% of mining operations neighbour Aboriginalcommunities. A World Resources Institute study in2003 reported that many of the world’s active minesand exploration activities are now located inenvironmentally and socially vulnerable areas,many of which are occupied by, or are important to,Indigenous Peoples. As documented in the PositionStatement, Indigenous Peoples may be affected by,or have an interest in, mining and metals projects inseveral different capacities:• they may have – or claim – some form of legallyrecognized ownership or control over the land,territories and resources that miningcompanies want to access, explore, mine orotherwise use• they may be customary owners of land,territories and resources but without formallegal recognition of this ownership• they may be occupants or users of land,territories and resources either as customaryowners or as people whose customary lands areelsewhere• the land may contain sites, objects or resourcesof cultural significance; and/or the landscapeshave special significance because of association,tradition or beliefs• they may be residents of an affected communitywhose social, economic and physicalenvironment are or will be affected by mining andassociated activities.9 Good Practice Guide Indigenous Peoples and Mining

1The impact of mining development on IndigenousPeoples may be positive, negative or a mix of bothdepending on factors such as geographical location,community characteristics, past experiences withmining, the nature of the mining activities and,critically, how the company approaches themanagement of the impact of these factors. Anyimpacts are rarely self-contained and tend togenerate complicated socio-economic interactionsintroducing unexpected secondary impacts, whichcan be of a negative nature. The scale and nature ofimpacts will also vary over the life of the miningprojects.Table 1, below, highlights some of the ways in whichmining projects may potentially impact IndigenousPeoples. Those on the left-hand side are clearlynegative; those on the right are more positive, butnot uniformly so, because of the way in whichevents can have a secondary, as well as a primaryimpact on Indigenous People (e.g., the increasedincome associated with mining activity may cause ashift to a cash economy that may be contrary tocertain traditional cultures).Getting Table 1: it Examples wrong of potential impacts of mining projects on Indigenous Peoples• physical or economic displacement andresettlement• reduced ability to carry on traditionallivelihoods due to loss of access to land and/ordamage or destruction of key resources(forests, water, fisheries)• displacement of artisanal miners• destruction of, or damage to, culturallysignificant sites and landscapes – both tangibleand intangible• social dislocation and erosion of cultural valuesas a result of rapid economic and social change(e.g. the shift from a subsistence to a casheconomy)• social conflicts over the distribution and valueof mining-related benefits (e.g. royalties, jobs)• increased risk of exposure to diseases such asAIDS, tuberculosis and other communicablediseases• increased exposure to alcohol, gambling andother “social vices”• further marginalization of some groups (e.g.women)• “outsiders” (e.g. artisanal miners) moving on totraditional lands due to areas being opened upby the construction of roads• large-scale uncontrolled in-migrationcontributing to increased competition forresources and social tensions.• improved infrastructure and services (e.g.access to clean water, power, roads)• better health outcomes, due to improvedservices and delivery , better preventivemeasures (e.g. spraying for malaria)• improved support for education and betterresources and facilities• enhanced employment and businessopportunities, both in mining and ancillaryindustries• increased income flows through royalty streamsand compensation payments• improved living standards due to increasedwealth• company and government assistance forcommunity development initiatives andlivelihood support programs• company support for identification, protectionand promotion of cultural heritage• environmental restoration and protection (e.g.through reforestation initiatives, improved firemanagement)• special measures for the improvement ofmarginal groups (e.g. through education, smallbusiness development programs).Good Practice Guide Indigenous Peoples and Mining10

1 INTRODUCTION1.6 How the Guide was preparedThe information and advice presented in this Guidehas been drawn from a broad range of sources:publications and websites of government agencies,international organizations, civil society groups andindustry associations; company reports and othercorporate publications; company policies andstandards; case studies provided by companies viathe ICMM; the research literature; and,consultations with industry personnel and externalstakeholders. The sources used in preparing theGuide (along with other useful literature) are listedin Appendix B, grouped by theme.The Guide was developed by a consulting teamcomprising specialists from the Centre for SocialResponsibility in Mining (CSRM) of QueenslandUniversity, Australia, and Synergy GlobalConsulting. They responded to a Terms of Referencedeveloped by ICMM designed to stimulate thedevelopment of practical guidance in support ofICMM’s Position Statement on Mining andIndigenous Peoples. From the outset, an IndigenousPeoples’ Advisory Group (see foreword andacknowledgements section) was convened to:• provide suggestions and perspectives on thedevelopment of the Guide to ICMM and a WorkingGroup comprising representatives of ICMMmember companies• play a “quality assurance” role, by constructivelychallenging ICMM and the Working Group (seeacknowledgements section) on the developmentof the guidance.The Advisory Group was made up of five individualswith international expertise in mining andIndigenous Peoples’ issues from a diverse range ofgeographies and backgrounds. The group providedconstructive critical comments on two iterativedrafts of the documents, in writing and viateleconferences.The second draft of the Guide was circulated to awide range of representative and advocacyorganizations working on indigenous issues forcomment, on the understanding that providingcomments in no way implied endorsement of thecontent (see acknowledgements section).A compilation of the comments arising from thisconsultative process provided the basis for a twodayin-person meeting between the Advisory Group,Working Group, ICMM and consultants.A third and final draft was also reviewed by theAdvisory Group and ICMM Working Group, and finalchanges made to address any residual concerns.Process for gathering case studiesIn order to illustrate particular points in the text, thisreport features good practice case studies as well asexamples of poor or problematic practice. In the case ofthe latter, the operations have not been identified.The good practice case studies were selected from acombination of public sources (notably businessassociation and company websites) and email andtelephone correspondence with ICMM members. The aimwas to showcase a broad range of issues as well asgeographical spread, though it is acknowledged that therewas more information available on good practice fromsome regions than others.Each case study was reviewed by the featured company,plus, where appropriate, by an indigenous communityrepresentative. Several of the short case studies thatappear throughout this document are taken from longerversions that will be made available on the ICMM website(www.icmm.com).The examples of “The costs of getting it wrong” have beenincluded on the basis that challenges can provide asmany useful lessons as success stories. The selectionwas made, once again, with the aim of highlighting abroad range of issues plus a wide geographical spread.Information for these examples has been taken frompublicly available sources only. These sources include theInternational Finance Corporation’s Compliance AdvisorOmbudsman’s website, the Bank Information Center,Oxfam Australia’s Mining Ombudsman website and theMines and Communities website. Their inclusion does notimply agreement with either the specific allegations orconclusions outlined in the source material, but isindicative of the adversarial relationships and outcomesthat can result from negative interactions between miningcompanies and Indigenous Peoples.11 Good Practice Guide Indigenous Peoples and Mining

1Maasai women dancing and singing in traditional dress. Maasai Mara, Kenya“Treat the earth well: it was not given toyou by your parents, it was loaned to youby your children. We do not inherit theEarth from our Ancestors, we borrow itfrom our Children. We are more thanthe sum of our knowledge, we are theproducts of our imagination.”Ancient proverbGood Practice Guide Indigenous Peoples and Mining12

1 INTRODUCTION1.7 Scope of the GuideA broad distinction can be drawn between thosesituations where:1 Indigenous Peoples are connected in some wayto land, territory 2 and resources on whichmining-related activity is occurring or proposed.This connection may be legally recognized,established by custom, be based on use ratherthan ownership and/or have a predominantlytraditional, cultural or spiritual basis2 Indigenous Peoples are, or could be, affected bymining-related activity, but have no traditionallyrecognised connection to the land on which theactivity has or will occur. An example of this iswhere indigenous groups have beendispossessed of their land, or have voluntarilymigrated from other areas, and live in a townnear a mining development.The Guide deals with both types of situations, but isprimarily aimed at providing guidance to companieson good practice where mining-related activitiesoccur on or near traditional indigenous land. Thisrecognizes that particular rights, legalrequirements and interests come into play in suchcases and, also, that these situations tend topresent the greatest challenges for miningcompanies.The primary focus of the Guide is on mining-relatedactivities that take place in relatively remotelocations, but it is recognized that some mines arelocated close to large urban centres that containsubstantial indigenous populations.1.8 Structure of the GuideThis introductory section has set the context for thedevelopment of the Guide. Section 2 is concernedwith engagement across the project life cycle. Thefirst part of this section sets out the broadprinciples and aims that should inform engagementwith Indigenous Peoples and then examines in moredetail issues relating to indigenous involvement indecision making (including the principle of FPIC).The following subsections focus on effectiveengagement, building engagement capacity incompanies and managing workforce and contractorbehaviour. The section concludes with a discussionof some key engagement challenges including:dealing with negative legacies and perceptions,managing expectations and maintaining focus.Section 3 focuses on the early stages of the projectand on the information that companies require to:(a) facilitate initial engagement; and (b) ensure thatthey have appropriate strategies in place from theoutset to deal with the definite and anticipatedimpact of the project on Indigenous Peoples.Section 4 deals with agreements: both the makingof them (which usually occurs relatively early in thelife of a project) and their ongoing implementationacross the project life cycle. Topics addressed inthis section include components of agreements, keyfactors in making agreements and agreementgovernance, including implementation andparticipatory monitoring.2The terms indigenous land and territory are sometimes used interchangeably. While there is no firm distinction, “land” is often used to referto land over which Indigenous Peoples have formal or customary title, whereas territory in most cases refers to the broader area thatIndigenous Peoples use and move throughout. The broader concept of territoriality embraces historical, cultural and other dimensions thatare not tangible, such as spiritual connections. “Land” may also include rivers and lakes or areas beneath the waterline, such as reefs.13 Good Practice Guide Indigenous Peoples and Mining

1Section 5 focuses on the practical aspects ofmanaging the impact of a project and sharingbenefits, dealing with issues such as mitigation andavoidance of negative impacts, compensation,employment and human capital development,creation of business opportunities, provision ofinfrastructure and services, cultural preservation,and addressing discrimination and historicaladvantage.Section 6 is concerned with complaints, disputesand grievances. The section focuses both on preemptivestrategies and on mechanisms for dealingwith community issues and concerns when they doarise.Twine bags produced by Ayoreo villagers, Department of Santa Cruz, Bolivia. The designs are inspired by clan insignia.Good Practice Guide Indigenous Peoples and Mining14

2Engagementand IndigenousparticipationDogon men sitting in the shade of the men’s house or Toguna wearing indigo dyed clothing, Tirelli, Mali15 Good Practice Guide Indigenous Peoples and Mining

2 engagement and indigenous participation2.1 IntroductionThe term “engagement” refers to the interactions thattake place between a company, communities andother stakeholders. It covers a broad set of activities,ranging from the simple provision of informationthrough to active dialogue and partnering. It is a coreactivity that needs to take place in a sustained manneracross the project life cycle – from initial contact priorto exploration through to closure. Commitment 3 ofthe ICMM Position Statement sets out the keyprinciples that the ICMM expects its members toadhere to in relation to their engagement withIndigenous Peoples:ICMM Position Statement, Commitment 3:Engaging and consulting with Indigenous Peoplesin a fair, timely and culturally appropriate waythroughout the project cycle.Engagement will be based on honest and openprovision of information, and in a form that isaccessible to Indigenous Peoples. Engagement willbegin at the earliest possible stage of potentialmining activities, prior to substantive on-the-groundexploration. Engagement, wherever possible, will beundertaken through traditional authorities withincommunities and with respect for traditionaldecision-making structures and processes.The first part of this section outlines the principles ofgood engagement as they apply to IndigenousPeoples. Next is a short discussion of how companiesshould approach initial contact, followed by moredetailed analysis of the issue of Indigenous Peoples’involvement in decision-making, includingconsideration of the application of the principle offree, prior and informed consent (FPIC). The balanceof the section addresses:2.2 The principles of good engagementGood practice community engagement, in thecontext of Indigenous Peoples and mining, aims toensure that:• Indigenous Peoples have an understanding oftheir rights• indigenous communities are informed about, andcomprehend the full range (short, medium andlong-term) of social and environmental impacts –positive and negative – that can result frommining• any concerns that communities have aboutpotentially negative impacts are understoodand addressed by the company• traditional knowledge informs the design andimplementation of mitigation strategies and istreated respectfully• there is mutual understanding and respectbetween the company and the indigenouscommunity as well as other stakeholders• indigenous aspirations are taken into account inproject planning so that people have ownershipof, and participate fully in decisions about,community development programs andinitiatives 3• the project has the broad, ongoing support of thecommunity• the voices of all in the community are heard; thatis, engagement processes are inclusive.• the practicalities of engaging and communicatingwith Indigenous Peoples• building engagement capacity within miningcompanies• managing workforce and contractor behaviourdealing with challenges arising fromengagement.3One approach that has been applied to ensure Indigenous Peoples’ perspective is taken into account is ethno-development. According to aWorld Bank study, this approach “builds on the positive qualities of indigenous culture and societies to promote local employment andgrowth”. http://go.worldbank.org/DA5R0QTX20.Good Practice Guide Indigenous Peoples and Mining16

2 engagement and indigenous participationEnsuring inclusivity of engagementWhile it is important to acknowledge the role ofelders and other traditional community leaders, itshould not automatically be assumed that thosewho occupy formal leadership positions, whetherthey be traditional or government appointed,represent all interests in the community. Inparticular, companies need to be sensitive to thosesections of the community who are frequentlyexcluded from the decision-making process, suchas women and young people.Where traditional decision-making structuresexclude women and younger people, it may benecessary to obtain input from these groups by lessdirect means (for example, and where possible, viacommunity needs surveys and baseline studies, orthrough informal discussions with small groups).Also, company representatives should endeavour toexplain to traditional decision makers that, whilethey respect existing structures and will workthrough them wherever possible, it is important forthe company to understand how its activities mightaffect all sectors of the community.To a large extent, these principles of engagementapply regardless of a community’s racial or ethniccomposition. However, there are some distinctiveissues and challenges that arise in relation toengaging with Indigenous Peoples:• issues relating to FPIC are more likely to arise inrelation to Indigenous Peoples than other groups(see below)• in many situations, Indigenous Peoples may holdspecial and distinct rights through theirconnection with the land – whether these rightsare formally recognized or not – puts them ina different position to most other potentiallyaffected groups, with many Indigenous Peoplesadvocating that they should be regarded asrights-holders rather than simply as anothergroup of stakeholders• indigenous groups may not have had anyexposure to mining and therefore particular careneeds to be taken in the communication oftechnical information and mining-relatedconcepts• when engaging with Indigenous Peoples,traditional decision-making structures should beused as much as possible, recognizing thelimitation these structures sometimes pose forsome groups, such as women and young people.The costs of getting it wrongPerceptions of inadequate consultation leadingto sustained protestsA small rural community near to a proposed goldmine felt that they had been inadequatelyconsulted on the project. The company ignoredthe complaints. Protests followed, including anextended blockade of a highway that detained afleet of trucks carrying mine equipment. Thecommunity lodged a complaint to one of thefinanciers of the project and an independentreport was commissioned to investigate thesituation. The report focused on why an apparentlythorough set of consultations had been perceivedby the community as inadequate. In the meantimemore protests took place, including a protest by agroup of local women who interfered with themine’s power supply and caused power shortages.17Good Practice Guide Indigenous Peoples and Mining

2The costs of getting it wrongProposed mine expansion halted by communityconcernsOne company decided to voluntarily suspend itsexploration activities near to its existing mine site,in response to strong community opposition.Opponents were concerned about potentialenvironmental impacts, in particular, possiblewater contamination that might be caused by theoperation of a new mine. As part of thesuspension of activities, the mine had to reclassifya large mineral deposit in “proved and probable”reserves to “non-reserve mineralization”.2.3 Making initial contactThe quality of initial contact between miningcompany personnel and local community membersin a prospective mining area can set the tone for thewhole project. If mining staff and contractors arewell prepared, sensitive to Indigenous Peoples’culture, and respectful and open in their approach,this can provide the foundation for a solid andproductive relationship.Difficulties are likely to arise if companies:• enter into an area without first seekingpermission to do so• engage with the wrong groups or with personswho do not have authority to speak on behalf ofthe relevant group or community• fail to adequately explain what they are doing andwhy• do not allow sufficient time for the community toconsider a request/proposal or make a decision• disregard, or are ignorant of, local customs.Companies can avoid many of these problems ifthey:• confer with the community at the outset on howthey wish to be engaged• understand and respect local entry protocols asthey relate to permission to enter a communityand access traditional lands• commit to open and transparent communicationand engagement from the beginning and have aconsidered approach in place• conduct an initial risk analysis prior to enteringthe area and implement controls to mitigate keyrisks• ensure that all representatives of the company(including third party subcontractors and agentsof the company) are well briefed on localcustoms, history and legal status, andunderstand the need for cultural sensitivity• regularly monitor performance in engagement• so far as possible, strive for consistency ofapproach and employment longevity ofrepresentatives of the company so thatrelationships can be built and trust maintained• enlist the services of reputable advisers withgood local knowledge.It is a good idea for company managers to bepresent at initial meetings wherever possible and tomeet with the traditional heads of communities, asthis demonstrates respect and sets the scene forbuilding long-term trust and relationships withcommunities.Good Practice Guide Indigenous Peoples and Mining18

2• Collaboratively develop an effective means toensure that Indigenous Peoples have aninformed understanding of the proposed projectand what its potential impact might be on theircommunity as well as any benefits it mayoffer across the full project cycle, and theperspectives of relevant stakeholders onproceeding with the project (both positive andnegative). 4 For example, terminology used by themining industry might not have any meaningfultranslation in the language used in theindigenous community. In these circumstances,companies could consider developing a dictionaryof terminology with the community. It is alsogood practice for local stakeholders to hear theviews of other people about the project (e.g. fromNGOs, government bodies, academics, industryexperts, other communities that have dealtwith the company) where they may be able tousefully contribute additional information orperspectives. If requested, companies shouldalso consider providing Indigenous Peoples withthe means to engage independent informationgatheringexperts of their own choice.• Build cross-cultural understanding, for companystaff to understand the culture, values andaspirations of the community (see Section 2.6:Building engagement capacity in companies), andfor Indigenous Peoples to understand thecompany’s principles and practices.• Agree on appropriate decision-making processesfor the ongoing involvement of IndigenousPeoples, which are based on a respect forcustomary decision-making processes andstructures. As discussed in Section 3, companieswill need to spend time in gaining anunderstanding of the complexities and dynamicsof local decision-making processes andstructures as well as any differences or divisionsthat may exist within communities, in order toachieve the most representative outcomes.Decision-making processes should be designedso as to be commensurate with, and suitable for,the type of decisions that have to be made. Forinstance, customary decision-making processesmay need to be strengthened to address theimpact of a project across a large number ofindigenous communities.• Ensure that the involvement of IndigenousPeoples is inclusive and captures the diversity ofviews within and between communities, andconstructively engage with affected IndigenousPeoples to address any concerns they may havethat the principle of inclusivity might underminecustomary decision-making processes.Companies should also ensure that theirengagement is characterized by openness andhonesty, and could not be construed as involvingcoercion, intimidation or manipulation.4Examples of information that could be provided by a company include exploration and mining plans; impact assessments; mitigation andmanagement plans; closure plans; emergency response plans; and records of health, safety, community and environmental incidents ofexisting operations.Good Practice Guide Indigenous Peoples and Mining20

2 engagement and indigenous participation• Agree acceptable time frames to make decisionsthroughout the lifetime of the project, taking intoconsideration logistics, local customs,commercial requirements and time needed tobuild trusting relationships. Ensure that it isclear how the timetable for involvement links intowhen project decisions are made. Ideally,Indigenous Peoples’ initial involvement should besought well in advance of commencement orauthorization of activities, taking into accountIndigenous Peoples’ own decision-makingprocesses and structures.• Agree on a mechanism to resolve disputes orgrievances in order to proactively address thelikelihood that differences of opinion will arise(see Section 6: Dealing with grievances).Through all of these actions, companies should beable to demonstrate that they are engaging in goodfaith and acting with respect for the interests andperspectives of Indigenous Peoples regarding theproject and its potential impacts and benefits, andwith sensitivity towards cultural differences.Even if companies follow all the above steps, theremay still be some instances where the project failsto secure broad community support and generatessignificant ongoing opposition, notwithstanding thatthere may be government approval for the project.In these circumstances, it is generally acceptedgood practice that the project not proceed untiloutstanding community concerns have beenaddressed and resolved.• Agree on the terms and conditions for theprovision of any ongoing community support withaffected indigenous stakeholders and anyassociated reciprocal obligations.• Record the process and decisions reached whereIndigenous Peoples are involved, including theresults of any monitoring or reviews, to provide arecord for current or future generations who maybe affected by the decisions, and to ensuretransparency in the decision-making process.• Support the communities’ capacity to engage indecision making: for example, by providingaccess to independent expert advice, capacitybuilding, facilitation and mediation, or involvingexternal observers.21 Good Practice Guide Indigenous Peoples and Mining

2Engagement with the San Cristobal community near the Quellaveco copper project, Department of Moquegua, PeruSource: Anglo American“Of the land we come. Of the Motherwe are formed. Of the Earth we areborn. Before light existed, the seed wasalready sowed in the dark womb ofthe earth, in the moist and warmheart of our peoples.”Don Juan Chávez AlonsoIndigenous Purépecha Representative of the National Indigenous CongressMichoacán, MexicoGood Practice Guide Indigenous Peoples and Mining22

2 engagement and indigenous participation2.4.1 Decision making and the issue ofFree, Prior and Informed Consent (FPIC)Free, prior and informed consent (FPIC), in relationto mining activities taking place on indigenouslands, refers to a process whereby affectedIndigenous Peoples freely have the choice, based onsufficient information concerning the benefits anddisadvantages of the project, of whether and howthese activities occur, according to their systems ofcustomary decision making.The Elements of Free, Prior and InformedConsent• Free – people are able to freely make decisionswithout coercion, intimidation or manipulation• Prior – sufficient time is allocated for people to beinvolved in the decision-making process beforekey project decisions are made and impacts occur• Informed – people are fully informed about theproject and its potential impacts and benefits, andthe various perspectives regarding the project(both positive and negative)• Consent – there are effective processes foraffected Indigenous Peoples to approve orwithhold their consent, consistent with theirdecision-making processes, and that theirdecisions are respected and upheld.FPIC is of particular concern to Indigenous Peoplesinvolved with mining for a number of reasonsincluding:• historically, Indigenous Peoples have commonlybeen excluded from decision-making processesand the result has often been detrimental to theirwell-being• FPIC has been mandated or recommended in anumber of international and national legal andpolicy documents, including the UN Declarationon the Rights of Indigenous Peoples 5• calls for the right to FPIC are closely linked toIndigenous Peoples’ pursuit of the right to selfdeterminationand the rights to lands andterritories• the issue of FPIC is linked to the broader debatearound ensuring a fairer distribution of the costs,benefits, risks and responsibilities associatedwith mining activities• FPIC is also linked to an ethical principle thatthose who could be exposed to harm or risk ofharm should be properly informed about theserisks and have an opportunity to express awillingness to accept such risks or not.Adapted from UN Permanent Forum on Indigenous Interests (UNPFII), theTebtebba Foundation, the International Indian Treaty Council and others.While there is wide consensus on theneed for the involvement of IndigenousPeoples in the decision-making process tobe free, prior and informed, the issue ofconsent is the most contested elementof FPIC.5These include the non-binding UN Declaration on the Rights of Indigenous Peoples (2007); the International Labour Organization (ILO)Indigenous and Tribal Peoples Convention 169; the European Bank for Reconstruction and Development (EBRD) Environmental and SocialPolicy (2008) Performance Requirement 7 on Indigenous Peoples; the Philippines’ Indigenous Peoples Rights Act (1997); and the AustralianAboriginal Land Rights (Northern Territory) Act, 1976.23 Good Practice Guide Indigenous Peoples and Mining

2However, FPIC is both controversial and evolving.While there is wide consensus on the need for theinvolvement of Indigenous Peoples in the decisionmakingprocess to be free, prior and informed, theissue of consent is the most contested element ofFPIC.Proponents of FPIC argue that full recognition ofrights to self-determination and to lands andterritories involves Indigenous Peoples havingdecision-making authority over activities on theirlands, with an ultimate right of refusal.Governments, however, are often reluctant to applythe principle of FPIC, seeing it as undermining thesovereign right of states to make decisionsregarding the development of natural resources.There are also practical difficulties in applying theconcept of consent where it is not legally mandated.For instance, the term FPIC is used in differentcontexts; in some cases it is used in terms of beinga right to approve or veto activities, and in others interms of being a principle that decision-makingprocesses should aim to achieve. There are alsodifficulties where the application of consent involvescustomary decision-making processes (for instance,if these require unanimity or exclude a significantproportion of the community, such as women). Incustomary societies, consent can involve anythingfrom consensus through to autocratic andtheocratic directive. The pursuit of “consensus” canalso result in coercive practices if poorly handled byeither traditional authorities or companies.2.4.2 ICMM’s position on FPIC andIndigenous Peoples’ involvement indecision makingThrough ICMM’s Position Statement on Mining andIndigenous Peoples, member companies commit to“engaging and consulting with Indigenous Peoplesin a fair, timely and culturally appropriate waythroughout the project cycle...based on honest andopen provision of information” in accessible forms(Commitment 3). This is consistent with the “Free,Prior and Informed” elements of FPIC. Membersrecognize the importance of engaging affectedIndigenous Peoples in project decision-makingprocesses, with the objective of achieving mutuallybeneficial project outcomes (Commitments 6 and 7).Furthermore, members commit to seeking “broadcommunity support for new projects or activities”,and recognize that “following consultation with localpeople and relevant authorities, a decision maysometimes be made not to proceed withdevelopments or exploration even if this is legallypermitted” (Commitment 9).Where FPIC for Indigenous Peoples has been legallyprovided for by national governments, ICMMmembers are expected to always comply with thelaw. At the same time, it is the view of ICMM’smembers that a blanket endorsement of the right toFPIC is not currently possible, particularly given thedifficulties entailed in applying the concept inpractice (see 2.4.1 above). ICMM’s members,however, are committed to participating in nationaland international forums on FPIC, and welcomeopportunities to further explore engagement withIndigenous Peoples and consent processes inrelation to mining projects.Good Practice Guide Indigenous Peoples and Mining24

2 engagement and indigenous participation2.5 The practicalities of engagingwith Indigenous Peoples2.5.1 ListeningAn attitude of respectful listening and willingness tolearn from Indigenous Peoples goes a long way tobuilding confidence between the different parties.Sometimes, the process of listening to IndigenousPeoples may involve sitting through long meetings,stories or side-talk. It may also require extensivetalking around an issue in order to gauge the rightmoment before getting to the point of business. Inmany cases, it may be culturally inappropriate to gostraight into business talk without following culturalprotocols and “affirming the relationship”.2.5.2 Allowing for timeCompanies are often under time constraints toachieve objectives according to project milestones.However, indigenous groups need time to considerthe consequences of project propositions,particularly if they have not previously had anyexperience of mining developments. It is generallybetter for a company to err on the side of cautionand try not to rush any process with indigenouscommunities, as this could be counter productive.To avoid this being an open-ended process,companies should endeavour to negotiate anagreement with community representativesregarding key dates and deadlines, recognizing theneed for some flexibility to be built in toaccommodate unforeseen events or delays. It isimportant to remember that respect and mutualunderstanding develop over time, and are unlikelyto emerge from discussions that are solely focusedon issues of interest to the company. As oneseasoned observer of mining company andindigenous relationships has remarked, “take timeto have tea with one another and haveconversations that may be unrelated to decisions”.Companies should also bear in mind that manyIndigenous Peoples view time as cyclical, incontrast to the western view of time as progressingin a linear way without stopping (i.e. past-presentfuture).This means that the same events canhappen over and over again, and so time is not aforce that passes by inexorably. These differingperspectives of time need to be recognized andaccommodated in companies’ engagement withlocal communities.2.5.3 Respect and understandingLearning about and respecting local customs isimportant for building good relationships between acompany and an indigenous community. IndigenousPeoples, like all people, desire respect and to betaken seriously. Many projects encounter problemssimply because the affected indigenous communityfeels that it is not well understood or respected by acompany.Learning a “courtesy level” of local language is atremendous advantage. Accepting invitations to joinin local celebrations, activities and meals withmembers of the community will also be wellregarded by local communities. Refusing suchhospitality without a genuine and good excuse maycause great offence. Reciprocating hospitality isalso important in a number of cultures.Leading companies recognize that it is important toprovide Indigenous Peoples with the means to learnabout and understand the mining industry and thecultures of certain people working in a particularmining operation, as well as the practicalities of theindustry (see Argyle case study, below). This can bedone, for example, by inviting communityrepresentatives to visit the company’s offices and byarranging informal get-togethers with personnelfrom different parts of the operation. Companiesalso need to consider addressing the capacity gap inindigenous communities to understand and dealwith the demands of the engagement process. Thisshould be an ongoing commitment as an integralpart of engagement work.25 Good Practice Guide Indigenous Peoples and Mining

2Cultivating mutual learning andunderstandingRio Tinto’s 20-year-old Argyle Diamond Mine inWestern Australia is located in an area of majorspiritual significance for traditional landowners ofthe region. In 2001, it was recognized by both sidesthat a more formal relationship was needed, and awider set of indigenous communities engaged by thecompany.Many of the early meetings between Rio Tinto’srepresentatives and the Traditional Owners had noformal agenda and, according to meetingparticipants, Argyle Diamonds personnel made apoint of listening to the Traditional Owners andapologizing for mistakes of the past. The powerimbalance between the company and thecommunities was compensated for by undertakingcommunication in terms that were clearlyunderstood by the Traditional Owners.Members of the communities were taken on sitetours, including the underground mine. A number ofvisual aids were used to explain the impact of themining activity on the surrounding area, andtranslators were used to ensure that everyone couldfollow and participate in the negotiations.In a reciprocal process, the Traditional Ownersprovided the company with information about theircustoms, and performed ceremonies to ensure thatthe mining operation could be conducted safely andfree from interruption by ancestral spirits.2.5.4 Openness and communicationCompany information needs to be presented in anhonest and open manner and in a format that isreadily accessible. The emphasis should not just beon sharing technical information about theoperations of a mine throughout its lifecycle, butany potentially negative socio-economic orenvironmental impacts and how these will bemanaged, plus the potential benefits for IndigenousPeoples and how these may be enhanced.The costs of getting it wrongFailure to explain negative environmentalimpacts prompts government-imposedmoratorium on miningAt a proposed gold mining project, the indigenouscommunity claimed that the company had putlittle effort into trying to engage in constructivedialogue about the extent of environmentalimpacts. Concerns related to the use of cyanideand waste disposal methods, and the potential fortoxic waste to seep into the groundwater.Community discontent escalated into protests,and anti-mining graffiti appeared across the city.In response the company launched a publicrelations campaign promoting the benefits ofmining. The community held a referendum, andnearly all residents voted against the mineproposal. As a consequence, the governmentimposed a three-year moratorium on miningactivities in the region.company information needs to bepresented in an honest and openmanner and in a format that isreadily accessible.Good Practice Guide Indigenous Peoples and Mining26

“Long time ago, all human kind used to live together,speaking the same language. At that time we only hadbad food. One day a small rat told one of our womenelders that we could have very good food from a bigtree, growing by the river where we bathed. It was ahuge maize tree, that we cut down. Each group fromthe village took a different kind of maize from thetree: white, red, black, yellow and as soon as they ateit, they lost the common language and became adifferent group of people. So, this is the origin of allthe different peoples on the world.”Excerpt from origin story Ire ô KayapóIre ô Kayapó(Kayapó Indigenous Land, Pará Province, Brazilian Amazon)You can find more information (in English) about the Kayapó at the link: http://pib.socioambiental.org/en/povo/kayapo

Indigenous girl wearing traditional clothingcarries a small child on her back, Ecuador

2 engagement and indigenous participationIn communities where literacy and access totechnology are limited, company newsletters orreports may not be appropriate for communicating.Instead, information will often need to betransmitted orally using visual materials such aspictures, slides, animations, DVDs and models.Visits to other mining operations can be veryhelpful, although to ensure independence thesepreferably should be organized through theindigenous communities associated with theseoperations rather than by the companies.Information may need to be repeated and presentedin different forms. Careful listening to communityquestions and feedback will help communityrelations officers to plan follow-up informationsessions. It is a good idea to have information thatcan be left with the community to read or view at alater time, e.g. booklets, leaflets, posters and DVDs.Community consultation programsIn 2005, the Maruwai Coal Project (MCP) inIndonesia commissioned a series of communitybasedparticipatory rural appraisals (PRA), whichwere undertaken by anthropologists anddevelopment NGOs. Their brief included obtainingfeedback from key communities in the MaruwaiBasin on a model for future communityconsultation that MCP had drawn up. Thecommunities accepted the company’s suggestionof regular, inclusive and primarily village-basedcommunity consultation forums. The consultationprocess was named HAPAKAT, an acronym, whichin the Darak Murung language means ”agreement”or ”consensus” as well as ”brotherhood/sisterhoodrelationship”.2.5.5 Using local languageWhere the majority of the community are notproficient in the national language, it is generallybest to communicate in the local language. Workingwith or through local language shows respect forthe affected community, as does the attempt ofcompany staff to learn some functional locallanguage. Technical communication needs to besimplified to allow better understand of conceptsand mitigate against misunderstanding. However, itis often through translation that communicationproblems arise due to misinterpretation andmisunderstanding. This risk can be reduced throughrepeating and testing understanding andinformation.Building trust through communicating inthe local language and ensuring aconsistency of approachAnglo American began exploration in northernFennoscandia in 1999, in a region traditionallyinhabited by the Sámi people, the IndigenousPeoples of Norway, Finland, Russia and Sweden. Inevery territory they inhabit, the Sámi have a distinctaffiliation with the land. Because of the uniquecultures of the Sámi people, and the varyingcontextual factors, Anglo sought to tailor itsengagement approach for each group within theSámi community.Despite different contexts, Anglo has appliedengagement principles of treating indigenouscommunities respectfully and honestly, buildingrelationships slowly, and responding to the diversityof communities. A number of good practiceprocedures have been identified on this basis. Forexample, where company personnel do not speakthe national language (Swedish, Norwegian, Finnish)they carry with them cards with the contact detailsof a company contact person who can speak thelanguage to ensure local people can contactsomeone who can respond to any questions from thecommunities immediately.The company has also tried to ensure that the samerepresentatives visit communities each time, inorder to help build a long-term relationship.29 Good Practice Guide Indigenous Peoples and Mining

22.6 Building engagement capacity incompaniesLeading companies recognize the importance ofhaving the right team in place at the corporate andoperational levels, underpinned by strongmanagement systems.2.6.1 Committed managementCommitment from the top sets the scene forpositive relationship building. Managementinterface with Indigenous Peoples should go beyondgood public relations work, which is more aboutimage, reputation and brand risk. The senioroperational management need to understand therights, interests and perspectives of IndigenousPeoples and be able to commit and lead a companyteam to respect, understand and work withindigenous communities. This team should alsohelp the organization adapt and change itsapproach as necessary. Leading companies nowhave internal policies that reflect and reinforce thiscommitment.2.6.2 Qualified and experiencedcommunity staffCompany staff are likely to benefit from havingspecific skills, including an awareness andunderstanding of how to interact with IndigenousPeoples and experience or familiarization with thecontext in which they will need to work. They alsorequire skills to support specific tasks associatedwith the employment of Indigenous Peoples,business development support and communitydevelopment.2.6.2.1 Indigenous advisorsLeading companies routinely appoint individualsfrom indigenous communities to act as liaisonpoints with the local community. If IndigenousPeoples with the requisite skills are not availablefor these types of positions, then identifying andtraining people for these roles should be a priority.In some cases it may be necessary to utilize theservices of external representatives of theindigenous community (e.g. a civil society group)until such time as local people are fully prepared fora community relations role. Mentoring andsupportive supervision of indigenous advisers to theindigenous community is very important, given thepressures of the role and the difficulties associatedwith working for the company while living in thecommunity.Employing local people in community engagementand relations roles may not always be a good idea inthe initial stages of contact. Rather, it may be betterto establish a relationship with the community andthen facilitate a community hiring committee tohelp choose suitable staff. In that way, there can besome confidence that any appointments havereasonable community backing. In some cases (forexample, where there is significant inter groupconflict within a community) it may be preferable tolook outside the community to fill key communityrelations roles.2.6.2.2 Gender sensitivityParticularly in traditional indigenous communities,men will generally be more comfortable engagingwith male representatives of a company, andwomen with female representatives. Ensuring thatwomen’s voices are heard is very important, giventhe principle of inclusiveness and the fact that thenegative impacts of mining projects often falldisproportionately on women (see Section 3.3.3.1:Gender impact analysis). Where customaryapproaches to engagement or decision makingprevent the meaningful involvement of women,mining companies should endeavour to find otherways of facilitating this involvement through mutualagreement with the relevant communities.Good Practice Guide Indigenous Peoples and Mining30

2 engagement and indigenous participationAsmat traditional dance performed in front of international and governmental guests to open theAsmat Cultural Festival, Papua, IndonesiaSource: PT Freeport Indonesia31 Good Practice Guide Indigenous Peoples and Mining

22.7 Managing workforce andcontractor behaviourA key risk for mining companies working in or nearindigenous communities is that their employees orcontractors may behave inappropriately towards theindigenous community. Racist language or behaviour,showing a lack of respect for local customs ordestroying or damaging cultural heritage sites (even ifinadvertently) can cause long-term harm tocompany/community relations and, in some instances,trigger events that may lead to a project not goingahead, or being shut down. Actions that companiescan take to ensure that employees and contractorsbehave appropriately include:• implementing programs of cross-cultural trainingprograms for all employees and contractors (seebelow)• making clear to employees and contractors what isexpected of them (e.g. by communicating policiesthat define acceptable behaviour)• taking disciplinary action where there aresignificant breaches of these standards up to andincluding dismissal and termination of contracts• ensuring that contracts with employees,subcontractors, agents and joint venture partnerscontain appropriate provisions to govern theseparties' behaviour.2.7.1 Cross-cultural trainingIt is now relatively common for companies conductingmining-related activities in areas with significantindigenous populations to mandate some form ofcross-cultural training for company and contractorpersonnel. The more innovative programs:• focus not only on giving a historical understandingof the relevant community, but on providingpractical advice that can enhance cross-culturalcommunication and understanding (e.g. advice onbody language, initiating and ending conversations,culturally disrespectful actions, etc.)• involve local indigenous men and women in deliveryand teaching of the program (e.g. in conductingwelcoming ceremonies and sharing theirexperiences)• are differentiated according to the target audience(e.g. more intensive tailored programs for companypersonnel who supervise indigenous employees)• differentiate between cultural awareness andcultural competence• include follow-up and refresher sessions, ratherthan just being delivered as a one-off• where Indigenous Peoples use a different language,develop the capacity of project supervisors tocommunicate in that language.Addressing the gender gapFreeport-McMoRan Copper & Gold’s PT FreeportIndonesian affiliate formed partnerships to createthe Nemangkawi Mining Institute in 2003 with aview towards long-term development of indigenousPapuans in its workforce.Starting in 2007, Nemangkawi initiated specialprograms to provide opportunities for indigenouswomen in the industrial workplace. Women fromthese traditional communities have not historicallyparticipated in non-domestic employment. Severaldozen female Nemangkawi graduates are nowoperating heavy equipment in the company’sGrasberg mine and associated infrastructure.Good Practice Guide Indigenous Peoples and Mining32

2 engagement and indigenous participationThree examples of cross-cultural trainingprogramsIn the Guajira region of Colombia, where CerrejonCoal is based, approximately 40% of the 656,000inhabitants are Wayuu. The company has developed across-cultural awareness program for its employeesabout Wayuu culture, so that employees canunderstand and respect its history and traditions.Training includes geographic location, resources,limitations, relationship with nature, language, ethnicand cultural identity, rituals, traditions, economy andorigins of the Wayuu.At BHP Billiton’s Newman mine in Australia thecompany has developed a series of adult educationmodules for Aboriginal communities. Theseworkshops are attended by indigenous employees andsupervisors of indigenous employees. The presentersare indigenous people (consultants) and the focus ison employee and employer obligations, standards andcommitments, financial planning, cultural obligations,differing values and priorities, etc. The generalworkforce induction also includes a component onAboriginal heritage, covering the traditional rights ofIndigenous Peoples and valuing cultural heritagethrough protection and management of heritage sites.Additionally, since 2000, all new employees andcontractors have been required to complete one-daycultural awareness workshops, delivered by theWangka Maya Pilbara Aboriginal Language Centre.2.8 Some engagement challenges2.8.1 Dealing with negative legaciesand perceptionsIndigenous communities that have had pastnegative experiences with mining are likely to viewnew proposals to mine with suspicion or possiblyoutright hostility. Indigenous Peoples who live ingeographically marginalized areas where largescaleresource extraction is still possible (forests,potential farmland, rivers for hydropower,mineralized mountains, plains, tundra, etc.) alsohave good reason to be suspicious of “outsiders”coming onto their land or territory. A furthercomplicating factor for a large mining company isthat initial exploration and development may havebeen undertaken by a company that may not haveoperated to the standards expected today. Similarissues may arise where a project is acquired fromanother company that does not operate to thestandards expected of an ICMM member. Previousnegative experiences in the relationships betweengovernment and Indigenous Peoples may alsocontribute to an understandable initial hostility tomining companies.The flagship operation for Lihir Gold Limited (LGL) isbased on a small group of islands in north-east PapuaNew Guinea with a local population of approximately14,000 people. In 2009, LGL developed a socialawareness training program for all mineemployees. The program aims to createawareness on key stakeholder groups, LGL'ssustainable development agenda and communitydevelopment programs conducted under thecommunity benefits package called the LihirSustainable Development Plan (LSDP). The trainingprogram includes community and sustainabledevelopment workshops and visits to landownervillages and sacred sites. The key information fromthis training program has been captured in a new LGLpublication, LIHIR: Luksave long komuniti – which isbeing given to all employees.33Good Practice Guide Indigenous Peoples and Mining

2Positive actions that mining companies can take todeal with these legacies include:• being careful to show respect for the culture andcustoms of local people• using a trusted intermediary, such as anindigenous community organization, a religiousgroup, civil society or NGO to facilitate initialmeetings and the exchange of information• providing people from the community with theopportunity to meet and interact with seniormanagement, and the CEO in particular• acknowledging that the industry may haveperformed badly in the past (rather thanattempting to defend poor practices)• seeking out opportunities to remedy anylegacy of past socio-cultural and environmentaldamage (e.g. by restoring damaged cultural sites,filling in abandoned drillholes, revegetatingdisturbed areas)• being open and honest about the risks andbenefits associated with the project• highlighting that the company has standards,processes and practices that make it accountablefor its social and environmental performance andinforming communities about how they may beinvolved in these processes• establishing what historical commitments mayhave been made (e.g. by an exploration companyor joint venture partner) and, wherever practical,honouring those commitments.Indigenous communitiesthat have had past negativeexperiences with mining arelikely to view new proposalsto mine with suspicion orpossibly outright hostility.Good Practice Guide Indigenous Peoples and Mining34

2 engagement and indigenous participationIndigenous woman in traditional dress carrying wood on her back, Peru35 Good Practice Guide Indigenous Peoples and Mining

22.8.2 Managing expectationsUnrealistic expectations by local communities canlead to misunderstanding and conflict whenanticipated benefits do not materialize. Companyrepresentatives should be aware that expectationscan be created simply through the process of havinga meeting. They will also be better placed tomanage expectations if they:• communicate clearly and in a transparentmanner, and continue to have a consistentmessage about the project life cycle and what itsvarious stages may realistically mean, in terms ofjobs and other economic opportunities, includingreasons why the project may not actually develop• move quickly to clarify, so far as possible and tothe extent legally practicable, rumours about theproject, its timing and the impact it is having(both positive and negative)• listen carefully to how communities respond toinformation provided to them and to thequestions they ask – this will help to highlightareas of potential misunderstanding• formalize commitments and agreements inwriting, or at least keep a record or promisesmade, and document progress towards achievingsuch commitments.2.8.3 Maintaining focusA common problem, not restricted to indigenouscommunities, is that the initial effort that is put intocommunity engagement is not maintained overtime. This can occur for a variety of reasons, suchas management taking its “eye off the ball” onceproject approvals have been secured, turnover ofkey company staff, generational change in thecommunity and “consultation fatigue” amongcommunity members and representatives.Where there is a loss of focus and momentum,there is a real risk that a company will lose touchwith what is happening locally and may not beattuned to – or be slow to detect – changes in themood of community. Moreover, relationships thatwere initially built up between the company and keydecision makers in the community may erode.Some actions that companies can take to remainactively engaged with the community are to:• formalize a comprehensive engagement plan,which is reviewed and updated regularly andwhich is linked to both the operation’s broadermanagement and planning processes and thecommunity’s own plan for its future• establish systems for recording compliance withand following up on commitments• embed engagement mechanisms and processesinto agreements (see Section 4: Agreements)• implement strategies to reduce the impact thatloss of key staff might otherwise have oncompany/community relationships (e.g. throughsuccession planning and by diversifying thenetwork of relationships in the community)• set up effective arrangements for resolvingdisputes and grievances (see Section 6: Managingdisputes and dealing with grievances).Good Practice Guide Indigenous Peoples and Mining36

3laying thegroundworkIndigenous Kamoro woman from Kakonao operates a haul truck at Freeport’s Grasberg mine, Papua, IndonesiaSource: PT Freeport Indonesia37 Good Practice Guide Indigenous Peoples and Mining

3 laying the groundwork3.1 IntroductionThis section deals with the actions that companiescan take early in the life of a project 6 to provide asolid basis for ongoing engagement with theIndigenous Peoples of the area and to anticipateand manage risks and opportunities that may beassociated with the project and the ways in which itmay potentially impact on the community. Thespecific topics covered in this section are:• processes for determining relevant IndigenousPeoples’ rights and interests• social mapping• baseline studies• cultural heritage surveys• impact assessments (including conflict andgender impact assessments).3.2 Determining relevant IndigenousPeoples’ rights and interestsPrior to commencing exploration or developmentactivity, leading companies will generally have takenall reasonable steps to ascertain whether theactivity is likely to impact on or involve IndigenousPeoples in some way. This will include identifyingany national and sub-national laws relevant toIndigenous Peoples and the constraints andobligations these laws impose for conductingmining-related activities on indigenous lands, aswell as customary or traditionally defined rightsthat may not be formally recognized in law.The costs of getting it wrongFailure to identify Indigenous Peoples’ interestsduring environmental impact assessment leadsto community protestOne company’s environmental impact assessmentdid not fully acknowledge the impact of atransportation route through a group of localvillages. The communities, having not beenconsulted on the potential benefits of the project,and having witnessed heavy mine transportpassing through their villages on a daily basis,began to protest against the company. Thecommunities approached an independentorganization for assistance with their concerns,claiming traditional hunting rights over the minearea and transportation route and criticizing themine operator for failing to develop an IndigenousPeoples’ development plan to minimize theimpacts of mining and ensure that theyparticipated in the benefits of the project. Whilethe communities’ complaints were only partlyupheld, the company was publicly criticized for itsfailure to engage constructively and openly withmembers of local communities during the projectplanning process.6Exploration projects often have limited resources and there may be a reluctance to invest in building good relations when there is only a lowprobability that exploration will lead to the development of a full-scale mining operation. However, responsible companies recognize that it isfalse economy to neglect community relations at this early stage, as to do so could jeopardize subsequent stages of development. A helpfulreference for the exploration phase is the e3Plus: A Framework for Responsible Exploration launched by the Prospectors and DevelopersAssociation of Canada. www.pdac.ca/e3plusGood Practice Guide Indigenous Peoples and Mining38

3 laying the groundworkA sub-clan leader performs a traditional warlike display of his clan’s strength on a platformbuilt for the Loriahat ceremony to express their support in cash, traditional shell money(mis) and pigs to a host clan. Lihir, Papua New GuineaSource: Lihir Gold39 Good Practice Guide Indigenous Peoples and Mining

33.2.1 Understanding the legal contextAs noted in Section 1, there are significantdifferences between countries – and, sometimeswithin countries – in the extent to which the rightsof Indigenous Peoples are formally recognized andafforded legal protection, the ways in whichcustomary title and land/resource use are dealtwith (e.g. the process for determining who hasownership when such claims are recognized andthe rights that go with this) and the proceduralrequirements that govern access to indigenouslands.At one end of the spectrum are countries such asAustralia, Canada and the Philippines, which haveintroduced relatively comprehensive legislativeregimes that define (and limit) Indigenous Peoples’rights over land, and set out procedures forresolving claims and granting title. Further alongthe spectrum are countries like Papua New Guinea,where rights over land are recognized, but aregoverned almost entirely by customary procedures.At the other end of the scale are those countrieswhere there is no customary or formal legalrecognition of Indigenous Peoples’ rights over land.Countries with ostensibly similar legal regimes canalso differ considerably in the extent to whichlegislation is enforced and complied with inpractice.Protection of cultural heritage protection is arelated aspect that may also be subject to legalregulation at the national or subnational level. Inseveral countries, physical sites, narrative or storysites, artefacts and remains and, in some cases,landscapes are protected by law and companies arerequired to avoid damaging such sites, or to provideproper compensation where some damage isunavoidable. Few countries currently have laws inplace to protect intangible cultural heritage(language, oral traditions, performance arts, rituals,traditional knowledge, etc), but this is changing.Consideration of the many, complex, legal issuespertaining to Indigenous Peoples and mining isbeyond the scope of this Guide. Such issues have tobe understood and addressed on a country-bycountrybasis and companies will need to seekexpert advice for this purpose. The main point tomake here is that companies need to know andcomply with relevant national and local laws and beaware of any state commitments to internationalconventions and instruments. Lack of an effectivenational legal framework does not mean thatcompanies should not continue to engagerespectfully with Indigenous Peoples and actconsistently with ICMM’s Position Statement.ICMM Position Statement, RecognitionStatement 6: Where existing national or provinciallaw deals with Indigenous Peoples issues, theprovisions of such laws will prevail over thecontent of this Position Statement to the extent ofany inconsistencies. Where no relevant law existsthe Position Statement will guide memberpractices.Prior to commencing exploration ordevelopment activity, leading companieswill generally have taken all reasonablesteps to ascertain whether the activity islikely to impact on or involve IndigenousPeoples in some way.Good Practice Guide Indigenous Peoples and Mining40

A member of the Fuerabamba community close to Xstrata Copper’sLas Bambas project at a Sunday market. Department of Apurimac, Peru

“The Great Spirit is in all things, he isin the air we breathe. The Great Spiritis our Father, but the Earth is ourMother. She nourishes us, that whichwe put into the ground she returnsto us.”Big Thunder(Bedagi)(Wabanaki Algonquin)

3 laying the groundwork3.2.2 Ascertaining customary landownership and useWhere there is a legal regime that recognizescustomary ownership in some form of rights overland, it may be possible to ascertain relativelyquickly which indigenous groups, if any, have aconnection to the land on which exploration ormining is proposed, as the claims of these groupsmay already have been recorded and recognized. Inmany instances, however, there will not be a readilyaccessible source of information about who has, orwho has claimed, title or usage rights over the land.It will be important, therefore, to carry out anappropriate due diligence process that wouldinclude a review of recent court decisions in orderto fully understand the status of land ownership andclaims and for this purpose, companies are likely tofind that they will need to obtain local expert advice.In some indigenous societies, Indigenous Peoplesoccupying and using the land may not be theindigenous owners. However, both classes of peoplehave traditional rights and responsibilities that needto be recognized and taken into account.Some questions that will assist companies todetermine whether Indigenous Peoples areconnected to an area are:• Do Indigenous Peoples currently inhabit theland?• Is the land used by Indigenous Peoples tosupport traditional livelihoods (e.g. nomadicgrazing, harvesting, fishing, hunting, utilisation offorest resources)?• Is the land accessed (or avoided) for culturalpurposes, or has it been in the past (e.g. religiousceremonies, festivals)?• Is there evidence that Indigenous Peoples haveinhabited or used the land in the past?After initial engagement with local communityrepresentatives, guidance should be sought as towhich national, regional and local representativeorganizations may assist in collecting relevantinformation. Other suggested actions are to:• consult with representatives of governmentagencies, international organizations and NGOs,and local or international researchers that areworking, or have worked in the area• undertake desktop research to ascertain if anyhistorical, anthropological or archaeologicalstudies of the area have been undertaken• seek the advice of any other companies ororganizations that already have a presence in ornear the area.The costs of getting it wrongLand-ownership dispute prompts legal sanctionagainst companyA community requested a moratorium on thedevelopment of a forest area until a formalconsultation had taken place. The company didnot acknowledge the request and raised projectfunding on the basis that the community hadverbally given its consent. A major communityprotest followed and both parties went to court,with the company requesting billions of dollars indamages from the community. The court ruled infavour of the community and an injunction wasimposed to prevent development of the disputedarea.A social mapping study (see below) may also clarifythe situation in relation to traditional ownership anduse.43Good Practice Guide Indigenous Peoples and Mining

33.2.3 Dealing with competing, overlappingand adjoining claimsSometimes, more than one group may claimcustomary ownership over an area, or part of anarea, or there may be disputes between groups overboundaries. These issues are most likely to arisewhere there has been intermingling of groups as aresult of displacement and internal migration, orpeople have moved away from their traditionallands to new areas.It can be tempting for companies in thesecircumstances to favour whichever group is moreco-operative and supportive of mining, but this pathis fraught with difficulties. Such a response couldresult in a group that potentially has a legitimateclaim to an area being excluded from discussionsand negotiations, which might develop into adispute between the company and that group.Reacting in this way is also likely to cause orexacerbate tension between the relevant groupsthemselves and intensify opposition to mining fromthose who have been excluded.Good practice in these cases is to adopt an inclusiveapproach and assume that claims from differentgroups are valid until shown otherwise. Also, wherethere are conflicts and disagreements betweengroups, companies should look for opportunities toassist groups to resolve their differences (e.g. byhelping to identify a mediator, or perhaps offeringto fund one) rather than leaving it to “the law” torun its course.Another situation that may arise is where a projectand related infrastructure (such as pipelines andrailways) crosses over the land of differenttraditional owner groups, or otherwise impacts onthese lands (as in the case of a watershed, forexample). In these cases, good practice is forcompanies to be consistent and transparent in theirdealings with all impacted groups.3.2.4 Dealing with disconnectionIn some countries, sections of the indigenouspopulation have become disconnected, bothmaterially and culturally, from their traditionallands as a result of expropriation, discrimination,economic exploitation, migration and the widerimpacts of social and economic change. Oneconsequence is that there may be indigenousgroups living in the vicinity of an area of interest to amining company who may not necessarily beregarded as the traditional owners of this land, butwho might nonetheless be considered ”local”. Thiscan arise, for example, where a group has migratedfrom one part of the country to another, in responseto the loss of their traditional lands, or where theyhave been relocated into a government-controlledsettlement or a mission.If these groups live on land that is, or is likely to be,affected by mining or are reliant on it for theirlivelihoods, their support should still be sought andthey are entitled to be compensated fairly for anyloss of access, use or amenity. DispossessedIndigenous Peoples are often in considerabledistress, having lost their connection to theirtraditional land. These groups will have distinctopinions on how they would like to be considered inany project design, particularly around impactmanagement and benefit-sharing arrangements.The reverse situation can apply where thetraditional/customary owners of the land where themining project is to take place have themselvesbeen displaced and now live away from their lands.These groups also need to be engaged with andtheir concerns and aspirations taken into account,particularly where they still maintain someconnection to the land.Good Practice Guide Indigenous Peoples and Mining44

3 laying the groundwork3.3 Baseline studiesBaseline studies provide a benchmark againstwhich the potential impact of mining operations canbe anticipated and change measured. They are alsovaluable for building mutual understanding betweencompanies and local communities. They mayincorporate social mapping and social organizationstudies, cultural heritage and archaeologicalsurveys, and impact assessments. Such studies willnot normally be undertaken until a project is atconcept stage, although in some cases (e.g. wherethere is a risk that exploration activities maydamage cultural heritage) they may be moreappropriately initiated earlier.ICMM Position Statement, Commitment 2: Clearlyidentifying and fully understanding the interestsand perspectives of Indigenous Peoplesregarding a project and its potential impacts.Social impact assessments or other socialbaseline analyses for projects which may impacton Indigenous Peoples will examine theirparticular perspectives and be based onconsultation with them.Conducting robust baseline studiesThe joint venture gold and copper project of OyuTolgoi between Rio Tinto and Ivanhoe is located inthe south Gobi region of Mongolia.The Oyu Tolgoi project is funding a social baselinestudy to establish a set of reference points orindicators at the national, aimag (province) and soum(sub-province) level. The study used secondarysources for much of the national-level data andconducted field research at the local householdlevel. Focus group discussions were used to gatherqualitative data to complement the quantitativesurvey data. The groups were designed to ensurethat all sections of society were represented, withgender being one of the main selection criteria.An advisory group comprising different stakeholdersfrom different interest groups and areas of expertise,both within Mongolia and externally, is guiding thestudy and the final report to ensure that the data areaccessible to those who may wish to utilize thefindings in the future. An intensive socio-economicand environmental impact assessment will followand use some of the information from the baselinestudy as a benchmark.Baselines and assessments were traditionallyundertaken as part of development approvalprocesses, but are now being recognized as havingmuch broader application. Leading companies nowroutinely require their operations to undertake suchstudies and update them at regular intervals,including when there is any significant change tothe scale or shape of a project. Some companiesalso provide quite specific guidance to operations onwhat should be covered in these studies. 77Where initial contact has been made by an independent prospector or exploration company, it is important in the baseline study to ascertainthe nature of the relationship and what, if any, information was given and agreements or promises were made. The prospector’s or juniorcompany’s perspective on these issues should also be sought.45 Good Practice Guide Indigenous Peoples and Mining

3 laying the groundworkA baseline study of an indigenous community willmost likely include much of the same data thatwould be collected in a “standard” baseline study(for example, quantitative data on employment,income levels, health, living conditions, and so on)but ought also to include explicit consideration of:• social structures: roles and responsibilities• cultural protocols, including traditional ways ofdealing with grievances and conflict• governance and decision-making structures• environmental and natural resourcemanagement strategies• knowledge of local foods and medicines• knowledge of health and education;• the structure and operation of the local economy,common property rights and, reciprocity• intangible cultural heritage, such as language,stories, art, music, ceremonies, spirituality.Social mapping and social organizational studies,cultural heritage and archaeological surveys,impact assessments, gender analysis and conflictanalysis are all elements of a comprehensiveapproach to performing a baseline study. Each ofthese is briefly discussed below.3.3.1 Social mapping and socialorganizational studiesSocial mapping is normally undertaken at an earlystage of a project by anthropologists, socialgeographers or other specialists. A standard socialmap will identify key groups, how they areconnected to each other, who has influence withinthose groups, systems of land tenure, inheritanceand ownership, and so on. Some social mappingexercises may go well beyond tangible structuresand relationships and look at “ethnohistory”; that is,Indigenous Peoples’ perspective on their history,cosmology and mythology.Conducting comprehensivemulti-stakeholder baseline surveysThe West Kitikmeot Slave Study (WKSS) Society wasset up in 1996 to collect environmental andsocio-economic information in order to enable betterinformedplanning and contribute to a baseline studyfor assessing and mitigating the cumulative effects of(mostly mineral) development on a 300,000 Km 2 areabetween Yellowknife and the Arctic Coast in Canada’sNorthwest Territories.Nine founding partner organizations – representing arange of interests including governments, Inuit andDene communities, environmental organizations andthe mining industry – contributed financially and heldseats on the board. WKSS board members wereassisted by a Traditional Knowledge SteeringCommittee and a Project Steering Committee.The near-US$10 million project covered four areas:wildlife and habitat studies, physical environment,socio-economic and preliminary studies relating totraditional knowledge. The traditional knowledgegathered by the project had never before beencaptured in written form. The project sponsored bothtraditional knowledge and scientific studies andsought ways to bring both to bear on critical researchproblems, encouraging a community-based trainingcomponent where possible. (see: www.enr.gov.nt.ca/_live/pages/wpPages/West_Kitikmeot_Slave_Study.aspx)47Good Practice Guide Indigenous Peoples and Mining

33.3.2 Cultural heritage assessmentIn some jurisdictions, companies are now required toundertake cultural heritage and archaeologicalstudies prior to any significant ground disturbance.Even where there is no legal obligation to do so,responsible companies will conduct these surveys asa matter of good practice.Surveys are designed to ascertain whether anyexploration or development work that is planned hasthe potential to disturb or destroy tangible forms ofcultural heritage (e.g. graves, campsites, trees,meeting places) or intangible forms (e.g. sacred sitesboth publicly known and those known only to theindigenous community). This information should thenbe used to inform the development of culturalheritage management plans.Surveys are best carried out in conjunction withknowledgeable members of the local indigenouscommunity, but may also require the use of specialistadvisers, such as archaeologists/ethnographers.Wherever practical, women as well as men should beinvolved in the surveys. As a general principle,cultural heritage information should be owned andmanaged by the local communities.Participation of Indigenous Peoples inexploration activitiesPrior to each exploration session, Teck holds anon-site meeting with the Traditional Owners in orderto review the upcoming field program, including afield examination of the proposed locations ofdrillholes, and geophysical and geochemical surveys.Several features of the area possess sacred,traditional and/or mystic qualities, and as such areconsidered extremely sensitive to the Gooniyandi. The“on the ground” consultations help to ensure thatexploration activities respect these features andlocations by observing restricted access or specificcustoms associated with each site.Members of the Gooniyandi community have joinedTeck’s exploration team, further ensuring thatexploration is carried out sensitively while providingthe Gooniyandi with a range of practical and appliedmining skills. Their extensive knowledge of thelandscape and ability to work in sometimes difficultconditions has also been of great benefit to the team.A flexible working environment responds to theimportance of family, cultural and communityobligations of Gooniyandi employees. For example,the company has arranged for a transport service toallow workers to be with their families during theevenings.Good Practice Guide Indigenous Peoples and Mining48

3 laying the groundwork3.3.3 Impact assessmentsAs discussed in Section 1, mining projects canimpact on Indigenous Peoples in a variety ofways – some positive, some negative, some amixture of both. Typically, any impact will not beexperienced equally by all of the IndigenousPeoples in an area. In particular, there is a strongbody of evidence demonstrating that women,children and the elderly are more likely to beadversely affected by mining development andresettlement, especially in the developing world.Groups and communities as a whole who arerelocated are also likely to be significantlydetrimentally affected.Exposure to negative impacts is likely to be greaterduring the construction and operational phases of amine, but can be significant even at the early stageof exploration. For example, construction of a roadfor exploration purposes may open up an area toillegal loggers or artisanal miners from anotherregion and increase in-migration and informalsettlements; drilling crews may introduce diseasesinto a previously unexposed area; watercourses canbe contaminated; or, significant cultural heritagesites can be damaged or destroyed.As this example indicates, exploration and miningactivities can have an impact well beyond the landon which they are conducted. Similarly, a poorlymanaged mining operation can have a detrimentalimpact on the quantity and quality of water availableto Indigenous Peoples living many milesdownstream. For this reason care should be takento identify all indigenous groups who may beindirectly affected by the project, directly orindirectly, even if no exploration or mining isplanned for their lands.As is the case with baseline studies, impactassessment ought to be seen as an iterativeprocess, rather than a one-off exercise. The initialassessment will normally be conducted as early aspossible in the project life cycle, prior to thecommencement of significant exploration activity ifpossible, and then updated as new informationcomes to hand or circumstances change.The principles and methodology for impactassessments relating to Indigenous Peoples areessentially the same as for baselines studies.Impact assessments should address consequencesthat Indigenous Peoples themselves considerimportant and which are specific in their culturalcontext. 10 For example, different indigenous groupsmay have specific cultural definitions of sustainabledevelopment that give greater emphasis to theperpetuation of customary traditions than toeconomic progress. For these groups, the economicbenefits of a mining project (such as employment,revenues) may carry with them significant culturalcosts (e.g. erosion of traditions, loss of languageand customs, and new social pathologies).Impact assessments and baseline studies shouldalso be done at a pace that is amenable to broadbaseddiscussion and with consideration ofindigenous communities. As discussed in Section 2,Indigenous Peoples need to be provided with timely,open and honest information (and in a consideredformat) about the potential impact of the project,participate actively in processes to identify risks andopportunities, and be involved in decisions abouthow to deal with these issues and others that werenot foreseen in original studies.Leading companies are addressing these issuesboth at the baseline study and social mapping stageand linking this knowledge through to subsequentprocesses, including impact assessments and in thedesign and implementation of suitable controls (seebelow).10The International Association for Impact Assessment (IAIA) describes basic and operating principles that aim to promote a meaningfulintegration of traditional knowledge as well as the respectful incorporation of Indigenous Peoples in impact assessment,http://www.iaia.org/iaia-climate-symposium-denmark/indigenous-peoples-traditional-knowledge.aspx49Good Practice Guide Indigenous Peoples and Mining

3Women from the Dongria Kondh tribe in the village of Devapada on the slopes of Niyamgiri mountain, Orissa, India.The mountain is regarded as sacred by the Dongria Kondh.there is a strong body of evidencedemonstrating that women, childrenand the elderly are more likely to beadversely affected by mining developmentand resettlement, especially in thedeveloping world.Good Practice Guide Indigenous Peoples and Mining50

3 laying the groundwork3.3.3.1 Gender impact analysisThe risks and benefits of mining to IndigenousPeoples are often considered only at a communitylevel, which often fails to distinguish between theimpact on women and men. While there isconsiderable evidence that the benefits offamily/community members employed in mininghave significant flow-on development advantagesfor women and families, the direct benefits frommining accrue more to men in the form ofemployment and business opportunities. This is incontrast to the costs of social disruption andenvironmental change and degradation, which oftenfall predominantly on women.A gender analysis entails:• understanding the different roles of women andmen within the indigenous social and culturalcontext, including the division of labour betweenthe sexes and the different rights andobligations within the household and the broaderindigenous community• analysis of the impact that operational policies,plans and programs will have on women ascompared to men• analysis of the impact of predominantly maleemployment and associated risk of powerimbalances, income inequality, and flow-ondomestic conflict• identification of issues and risks related todiscrimination and unequal access of women toresources and services• understanding power structures and the politicswithin women’s groups in communities, andsociety as a whole, so as to identifycommonalities and differences around impactsand assess the potential for conflict within suchgroups.A crucial aspect of gender analysis is the use ofsex-disaggregated data, which enables the impactof a project on women and men to be assessedseparately and for the intersection between genderand indigenous identity to be considered.More broadly, gender considerations should beaddressed by:• ensuring indigenous women as well as men areinvolved and participate in community consentand engagement activities• establishing gender-sensitive policy positions,such as for cultural heritage, employment andbusiness development• mainstreaming gender into project planning,particularly for community development• using gender-sensitive indicators, such asemployment data disaggregated by gender• consultation with national and internationalwomen’s organizations.3.3.3.2 Conflict assessmentsConflict assessment aims to assess the potential ofa project to contribute to conflict at the local level orbeyond, and to identify preventative strategies forreducing the risk of escalation and violentconfrontation (see Section 6: Dealing withgrievances). In an indigenous context, the analysisshould consider not only the possibility of conflictoccurring between indigenous groups and thecompany, but also tensions being generatedbetween and within indigenous groups, thecompany and the non-indigenous population.A good conflict analysis will require the samediligence as any type of risk analysis, to look belowthe surface to identify the potential for future issuesto arise. The absence of overt conflict or violence inan area does not mean it will not occur in thefuture, especially with the changes that a miningproject can bring (e.g. conflicts over access tofinancial payments and employment opportunities).Conflict levels may also be sensitive to changes toother external factors unrelated to the miningproject.A useful source of guidance on undertaking conflictassessments is International Alert’s Conflict-Sensitive Business Practice: Guidance for ExtractiveIndustries (www.international-alert.org).51Good Practice Guide Indigenous Peoples and Mining

4agreementsA child touches her hand with a “shaman” during a spiritual ceremony paying tribute to the pre-Colombian earth godsat the meeting of indigenous women from across the Americas. Lima, PeruGood Practice Guide Indigenous Peoples and Mining52

4 agreements4.1 IntroductionThe focus of this section is on the use of negotiatedagreements to define and regulate relationsbetween mining companies and indigenouscommunities. 11 The topics covered are:• the business case for agreements• characteristics of effective agreements• making agreements• components of agreements• implementation of agreements.4.2 The business case for agreementsThere is now broad recognition among the leadingcompanies in the global mining industry that strong,but flexible agreements with indigenous groups aremutually beneficial for both companies themselvesand the communities they operate in.For companies, agreements can provide a means ofsecuring long-term access to resources, loweringtransaction costs and uncertainty, and reducingexposure to disputes and legal action fromindigenous groups. For Indigenous Peoples, theagreement-making process can be a positive step inredefining their relationship with mining companiesoperating on their lands, allowing them to becomepartners to the project rather than merelystakeholders, and helping them to maximize thebenefits and minimize the impacts of the project.Negotiation is generally preferred over adjudicationin such systems, as the latter course of actiontypically involves lengthy delays, is considerablymore expensive, diminishes the capacity of partiesto influence outcomes and almost invariably hindersthe building of long-term relationships.In the past, if there was no legal imperative tonegotiate, many companies would have seen noneed for an agreement, but as the example belowshows, there is now a greater willingness to gobeyond compliance and voluntarily seek outopportunities to form agreements. For companies,the benefits in doing so include developing goodwillwith indigenous groups, proactively addressing andresolving points of conflict and tension, and creatinga governance mechanism around whichengagement and dialogue can occur into the future.This last factor can be particularly important incountries where government capacity is limited andthere is a low level of trust in the courts and otherinstitutions of the state.In the last two decades, negotiated agreementshave become commonplace in jurisdictions such asNorthern America and Australia where formalrecognition of customary ownership has led to thecreation of strong statutory frameworks. In thesecountries, the law promotes agreement making bygiving a “right to negotiate” to traditional owners,establishing procedures for registering and givinglegal effect to agreements, and providing analternative legal avenue (adjudication) if agreementcannot be reached.11A 2010 publication, The IBA Community Toolkit: Negotiation and Implementation of Impact and Benefit Agreements (Ginger Gibson andCiaran O’Faircheallaigh) provides a detailed guide to negotiating, developing and implementing agreements from the perspective ofindigenous communities (www.ibacommunitytoolkit.ca).53Good Practice Guide Indigenous Peoples and Mining

4Aboriginal dancers from the East Kimberly region, Western AustraliaSource: Rio Tinto DiamondsGood Practice Guide Indigenous Peoples and Mining54

4 agreementsRecognizing the interests of the traditionaloccupiers of local land and workingtogether with them to draft agreementsThe Boddington Gold Mine (BGM) in WesternAustralia is situated on land traditionally owned bythe Gnaala Karla Booja people of the NoongarNation. While the operation is situated on freeholdland and therefore largely not subject to native title,the mine owners wanted to develop a process thatacknowledges the Gnaala Karla Booja people as theTraditional Owners.The project partners worked with the Gnaala KarlaBooja to draw up a Community PartnershipAgreement acknowledging the Gnaala Karla Booja’srelationship with the land and committing thecompany to employing 100 members of theindigenous community during the lifetime of themine. To support this objective, the agreement coversthe following areas:• training and employment• business enterprise development• school retention programs• scholarships, apprenticeships and cadetships• mentoring programs• work experience• development of a cultural centre.The Gnaala Karla Booja wrote the preamble to theagreement highlighting the importance of theirrelationship to the land. Added to the CommunityPartnership Agreement is a Cultural HeritagePreservation Agreement, drawn up because the mineowners wanted to ensure they were acting properlyand respectfully when engaged in grounddisturbance work.4.3 What makes for a successfulagreement?In the broadest terms, successful agreements arethose that build and sustain positive, mutuallybeneficial relationships and partnerships betweenindigenous groups and companies. What this entailswill vary considerably according to the particularcircumstances and the aspirations and resources ofthe parties. However, there are some key definingfeatures.A prerequisite for a successful agreement is thatthe parties – and, in particular, the indigenousparties – view the process that led to the agreementas fair and equitable. If people feel that anagreement has been imposed on them, or they werenot properly informed of their rights and obligationsunder the agreement before signing it, they aremuch less likely to commit to making it work.Leading practice agreements also go beyond anarrow, short-term focus on compensation toaddress long-term development goals and the issueof post-project sustainability.The most effective agreements are treated not asstatic legal documents, but as flexible instrumentsthat provide a framework for governing the ongoingand long-term relationship between a miningproject and affected indigenous communities. Suchrelationships are characterized by willingness by allparties to change and improve the agreement ascircumstances require. Accordingly, these kinds ofagreements usually contain commitments from allinvolved parties, which reinforce the mutuallybeneficial aspects of the relationship, and arecharacterized by a willingness by all parties tochange and improve the agreement ascircumstances require.55Good Practice Guide Indigenous Peoples and Mining

4A Dogon elder tells the future with Cowrie shells, MaliGood Practice Guide Indigenous Peoples and Mining56

4 agreements4.4 Making agreements4.4.1 Establishing the overall aims ofthe agreementEffective agreements depend, first and foremost, onboth parties having a thorough understanding ofeach other’s objectives and needs.The company should strive to understand theaspirations, concerns and development needs of thecommunity so that these can be addressed as bestas possible. These will vary depending on thecontext; for example, generating economicdevelopment opportunities will be very importantfor some indigenous groups, whereas for othersprotection of traditional livelihoods and culturalheritage may be the highest priority. Baselinestudies and social impact studies will providevaluable insights into community needs andaspirations (see Section 3), but further issues willoften be drawn out in consultations andnegotiations undertaken as part of theagreement-making process.Communities, in turn, need to understand theinterests of the company and the potential impact ofthe project (both positive and negative). Companyobjectives and plans should be clearlycommunicated to all to ensure that the agreementis realistic and achievable. The risks as well as theopportunities associated with the project must beunderstood by all to avoid unreasonableexpectations.Establishing these long-term objectives at theoutset of a project and revisiting them through thenegotiation process and beyond will also help definestrategies for managing the transition to closure.Issues that should be addressed as part of thisdialogue include the duration and extent of ongoingcompany support and institutional arrangementsfor any remaining assets and finances covered bythe agreement.Matters for companies to consider prior to enteringinto formal agreement negotiations include:• What rights do the Indigenous Peoples of the areahave to control the use and development of land andsubsurface minerals?• What legal and procedural requirements, if any,apply to agreements between Indigenous Peoplesand mining companies? (For example, doagreements have to be registered, or can they beoutside the formal legal framework and what, ifany, rules should the company comply with innegotiations?)• Who in the indigenous community has authority(customary or formal) to negotiate on behalf of thecommunity?• Who else in the community should properly beincluded in this process and how might their inputbe obtained?• How could mining negatively impact on, orcontribute to the community and its development?• What is the current, expected and desiredrelationship between the company and thecommunity like?• What skills and experience do the company and thecommunity and their representatives have innegotiating similar agreements?• Does the community lack capacity in other areasthat would disadvantage its ability to negotiate?• What existing community organizations could beinvolved in the agreement?• Does the community have any relevant agreementswith any other organizations or companies?• What is the relationship between the governmentand the community like? What role is governmentlikely to play in the agreement process?• What remedies should the parties properly beentitled to in the event that the agreement isbreached?• Should the agreement include a mechanism fortermination and, if so, what provisions should bemade for outstanding claims?• Is it expected that the agreement will requiresignificant and/or frequent updating or revision andhow is this best effected?• By what means would the parties seek to resolvedisputes under the agreement and how could theyenforce it?57Good Practice Guide Indigenous Peoples and Mining

4Indigenous communities, for their part, should beencouraged and assisted to engage in an internaldialogue about what they are hoping to achieve froman agreement, any concerns they may have aboutmining and the particular project, and their hopesand goals for the community over the longer term(see 4.4.3, opposite).4.4.2 Building understanding and respectBuilding understanding and respect can take time.Negotiations between companies and indigenousgroups have been known to last up to five years orlonger, which requires staying power and thewillingness to return to issues that may have beenagreed sometime previously. There may also be asignificant challenge in managing the changes inthe individuals involved on both sides over thisperiod of time. While this may seem a long timebefore the project can start, establishing a strongagreement from the outset can help avoid delaysand disagreements later.Sometimes it is better to spend time initiallybuilding relationships before embarking on formalnegotiations. Overall, this can result in moreeffective and shorter negotiations compared tostarting the process without a solid foundation.Applying the principles of “good faith negotiation”will help establish a relationship of mutual respect,particularly when there has been a legacy ofconflicts and tensions. This form of negotiationseeks to establish, in a balanced way, where pointsof disagreement and agreement lie and what theoptions are for resolving disagreements.Underpinning this approach is the recognition thatthere may be asymmetries in information andunbalanced negotiating power between the partiesinvolved. This is in contrast to the positionalbargaining strategy often adopted by companies incommercial negotiations, with its emphasis on“ambit claims”, “bottom lines” and seekingmaximum bargaining advantage.Some practical steps that companies can take tofacilitate good faith negotiations are:• agree on the negotiation process and proceduresthrough a Memoranda of Understanding (MoU),including agreeing on the style of negotiation.(for example, negotiations do not always have tofollow Western negotiation styles)• ensure that company personnel andrepresentatives are trained in culturallyappropriate negotiations techniques andrelationship building• undertake detailed consultation with all theaffected indigenous communities so as to makethe negotiation process as inclusive as possible• provide plain language summaries of technicallyand legally complex documentation, using thepreferred language(s) of indigenous groups• allow sufficient time for the negotiation process,in appreciation of the need to give time toindigenous groups to arrive at decisions• use interim agreements to help demonstratethat both the company and indigenous groups arecommitted to reaching a final agreement.4.4.3 Building knowledge and capacityBuilding knowledge and capacity among bothparties is an essential part of negotiating andimplementing agreements. This involves not justsharing information on objectives and needs, butalso ensuring that it is presented in a meaningfulway; in particular, by taking care to avoid jargon andtoo much technical language when communicatingwith the community.In line with the principles of good faith negotiation,the goal should be to have the negotiationsconducted on a level playing field, such that neitherparty feels disadvantaged in any way. The companywill almost certainly be more experienced in formalnegotiations than the indigenous group it is workingwith and should ensure that the group has thecapacity to participate equitably. This can be done,for example, by providing funding to indigenousgroups to employ independent expert advice,covering travel and meeting costs, funding legal andnegotiations training and underwriting the cost ofhiring a lead negotiator (a common practice inAustralia and some other countries).Good Practice Guide Indigenous Peoples and Mining58

4 agreements4.4.4 Managing internal disagreementsAny tensions and disputes within the companyshould be resolved before its representatives beginnegotiating. All departments that might beimpacted on by the agreement need to understandthe issues that are likely to be discussed innegotiations and should be kept informed about thecompany’s position in relation to these issues.Indigenous groups may themselves be divided overthe desired outcomes for the agreement. Where thisoccurs it may be necessary to work with thecommunity to create special subgroups for widerconsultation on the agreement, with the aim ofensuring that people within the community do notfeel disenfranchised and that communityrepresentatives fully understand and adequatelyrepresent the interests of all. For example, inCanada, to avoid situations where internaldisagreements inside the community may beignored or concealed by the leadership negotiatingthe agreement with the company, it is consideredbest practice to embed a formal process ofratification by community members in theagreement itself, by means such as a vote,referendum or otherwise. For longer durationnegotiations, it is also useful if the communitynegotiators report back on a regular basis to thewider community on progress.While it is good practice to look for opportunities toinvolve, and leverage from, governments in thedelivery of development objectives, the question ofwhether to include governments in the negotiationprocess and/or as agreement partners needs to beaddressed on a case-by-case basis. If there isdistrust among indigenous groups towardsgovernment, this may hinder, rather than facilitate,the reaching of agreement and will add to thecomplexities of implementation. For this reason, theissue of government’s role should always bediscussed and (except in those cases wheregovernment can be a party to the process as amatter of right) agreed in advance with theindigenous parties.Representative organizations, NGOs and civil societygroups may also seek to become involved innegotiating and implementing agreements. Thismay extend to advocating on behalf of theindigenous community around issues ofparticipation, recognition and rights. If IndigenousPeoples have genuinely delegated representativeand advocacy roles to external agents, then thisneeds to be acknowledged and accepted by themining company and new ways of working need tobe formulated. This should include givingconsideration to whether the NGO or civil societyorganization needs capacity-building support.4.4.5 Involving other partiesGovernments will often have an active interest inthe outcomes of negotiations between indigenousgroups and mining companies and sometimes maythemselves be parties to agreements. For example,the Gulf Communities Agreement, which coversMMG’s Century mine in Queensland, Australia,included commitments by the Queenslandgovernment in the areas of infrastructure, healthand social development, education and training, andinstitutional support.Involving third party representatives ofindigenous community interestsThe South West Aboriginal Land and Sea Council(SWALSC) is a representative body of the Noongarpeople (the traditional owners of South-WestAustralia), which works with its members to findresolution for native title claims. SWALSC providedassistance and support to the Gnaala Karla Boojapeople during negotiations with the owners of theBoddington mine around the Community PartnershipAgreement and helped ensure fair outcomes for thecommunity. The SWALSC also helped manage highcommunity expectations around the agreement byexplaining some of the practical difficulties inmeeting certain expectations.59Good Practice Guide Indigenous Peoples and Mining

44.4.6 Confidentiality of agreementsOne of the issues that will have to be addressed aspart of the negotiation process is what informationabout the agreement should be made public andwhat may be sensitive and ought to remainconfidential.In some jurisdictions, it has been common practicefor most of the agreement to be kept confidential.Often companies have been active supporters ofthis approach, in part because they have beenconcerned that disclosing information could createa precedent for future negotiations with otherindigenous groups. Sometimes it has beenindigenous groups themselves who have pushedmost strongly for confidentiality, possibly becausethey do not want others (such as governments orother indigenous groups) knowing the financialdetails of compensation arrangements, or becausethe agreement deals with culturally sensitiveissues.Community concerns about disclosing sensitiveinformation (for example, details of payments toindividuals or groups) clearly need to be taken intoaccount, but it is now generally accepted as goodpractice that the use of confidentiality clausesshould be kept to a minimum, in the interests oftransparency, accountability and sound governance.4.5 Components of agreementsThere are no hard and fast rules about what should,and should not, be in an agreement. This willdepend on the context, the goals and aspirations ofthe parties to the agreement and what they see asfair and reasonable. It is possible, however, to givesome guidance on what the options are and therisks and potential benefits associated withdifferent approaches.The types of issues that can potentially beaddressed in agreements include:• financial payments and disbursementarrangements(see Section 4.5.1)• employment and contracting opportunities (seeSection 4.5.2)• environmental, social and cultural(heritage/language) impact management (seeSection 4.5.3)• governance arrangements (see Section 4.5.4)and• any provisions that might be agreed in relation tothe local community’s use of certain land.Regardless of how an agreement is structured orwhat it contains, it should not restrict or exemptcompanies from undertaking other engagement,impact management and benefit-sharing activitiesoutside the scope of the agreement.“When all the trees have been cut down,when all the animals have been hunted,when all the waters are polluted, whenall the air is unsafe to breathe, only thenwill you discover you cannot eat money.”Cree Indians prophecyGood Practice Guide Indigenous Peoples and Mining60

4 agreements4.5.1 FinancialThere are several different types of financialarrangements available for providing both shortand-long-termbenefits and for compensating forlosses or damages that indigenous groups mayexperience as a result of a mining project. Thesepayments can be disbursed in cash and/or asfinancing for specific community developmentprojects, to named individuals or wider groups.Specific agreements can incorporate one or acombination of these arrangements.4.5.1.1 Types of financial packagesFinancial arrangements are generally used toaddress both compensation and benefit sharing.These packages can take one or more of thefollowing forms:• Production or profit-based payments – an annualpayment for use of the resource or land, basedon a percentage of production or profits.Production/profit-based payments usually takeone of three forms:• a percentage or an amount based on annualproduction• a percentage of the annual revenue• profit sharing based on a percentage of annualprofits (see the Raglan Agreement below).Production/profit-based arrangements need tobe negotiated on a case-by-case basis as there isoften no overriding framework for fiscalarrangements, even during negotiations betweengovernments and companies.Revenue-sharing agreementsThe Musselwhite mine is located near OpapimiskanLake, 430 km northwest of Thunder Bay, Ontario,Canada. It is primarily an underground gold minethat started commercial production on 1 April 1997and produces about 250,000 oz of gold per year. Ithas proven reserves until 2012 but new discoveriesmay extend this to 2020. It is presently owned byGoldcorp, although the agreement was originallynegotiated by Placer Dome (subsequently acquiredby Barrick Gold). It is a fly-in, fly-out operation. Themine has all-weather road access but communitiesonly have winter road access from approximatelyDecember to February.There are five First Nations communities in the directimpact area of the mine: North Caribou Lake FirstNation, Cat Lake First Nation, Wunnumim Lake FirstNation, Kingfisher Lake First Nation and theMishkeegogamang First Nation. The closestcommunity is about 90 km from the mine. The FirstNations are a mix of Ojibway and OjiCree and havebeen reliant on a subsistence economy. There wereabout 1,500 people in total in the communities in thelate 1990s when the first agreement was signed withthe company.The First Nations had some limited experiencedealing with mining companies prior to the minebeing built, primarily in exploration activities, andoriginally had serious concerns about the proposedmine. They finally agreed to it on the condition thatPlacer Dome agree to put a cap on production andprovide benefits such as local hiring (with a goal of30% First Nations employees), job training, servicecontracts (housekeeping, catering, trucking) andsome support for community infrastructure projects(e.g. financial assistance to a local airline and to acommunity arena). The company also provided somesupport for the hiring of external consultants toadvise the First Nations on environmental issues.Furthermore, a community oversight role wasdefined for the First Nations with the creation of anEnvironmental Working Committee that undertookenvironmental studies and monitored compliance.61Good Practice Guide Indigenous Peoples and Mining

4The first agreement ran from 1996 to 2001 and, ingeneral, while fairly comprehensive in scope, wasless focused than it could have been. This causedsome difficulties for Placer Dome and thecommunities in how to interpret some broadlywritten clauses. The company usually took the finaldecision over which activities to support.After a number of years, it became obvious that theproduction cap was not allowing the company toachieve economies of scale and so it asked the FirstNations if they could raise the cap in order to haveunlimited production tonnage. In exchange, PlacerDome offered a revenue-sharing agreement with theFirst Nations based on the amount of gold producedand the prevailing selling price.Accessing royaltiesRed Dog is a zinc and lead mine in a remote area ofNorthwest Alaska. In 1982, the Red Dog “lease”agreement between Teck and the Northwest ArcticNatives Association (NANA), a representative body for10 Inupiat communities, was signed. The agreementgranted Teck exclusive rights to build and operatethe Red Dog mine and to market its metal productionin exchange for royalties from production for NANA.NANA received US$1.5 million in 1982 as a signaturebonus and received an additional US$1 million everyyear until production. Once production began, NANAagreed to receive royalties of the net smelter returnannually in the sum of 4.5% until Teck’s initial capitalinvestment was recovered (late 2007). NANA thenbegan receiving a share of the mine’s net proceeds,beginning at 25%, and increasing by 5% every fiveyears to a maximum of 50%, at which point NANAand Teck will share equally in the profits.• Equity – a share of ownership in the project, andsubsequent share of dividends paid toshareholders, in return for financial payments, orin recognition of the value of support from theindigenous group or the rights which the grouphas over the resource. The principal benefits of anequity share are that the shareholder will have adirect share of the profits from the project andhold some degree of ownership in the company orproject. However, the income stream from anequity share is not so certain as that fromproduction/revenue-based payments, and equityparticipation poses the risk of negative returnsand exposure to project capital injections, forexample, for expansion.• Other types of fixed annual payments – dependingon the context, these payments may be defined asbenefit-sharing payments or social investmentpayments. In some cases these annualpayments may be based on a certain proportion ofthe total capital expenditure (capex) on a project.• Fixed single payments – these may be either oneoffpayments for reaching agreed milestones, suchas completion of construction or achievingproduction targets, or a fixed compensationpayment to redress damage or a particular loss, ora right of way payment. Fixed payments may beused prior to production/profit-based payments orequity-sharing arrangements.Teck also agreed to hire NANA shareholders as firstpreference and provide sufficient training as well aseducational programs for community youth.Currently, over half of the staff at Red Dog are NANAshareholders. The agreement also called for aSubsistence Committee, which ensures theprotection of caribou and whale populations byshutting down transportation routes during migratingperiods.Good Practice Guide Indigenous Peoples and Mining62

“In our culture, survival meant sharing. If someonecame into our territory and they were hungry andwe had food, we would share. It’s confusing whenIndustry comes into our territory and is not preparedto share. We have had to learn new skills to negotiatewith Industry but even today it is hard to negotiatewhen our culture is based on the principles of sharing,without having to ask. Industry must stop seeing us asa cost of doing business and recognise and understandour culture and our view of sharing the benefitsfrom our territory.”Charlie OkeeseEabametoong First NationOntario, Canada

Inuk hunter dressed in traditional Caribou skin clothingtravels by dog sled on a winter hunt, Nunavut, Canada

4 agreementsInnovative profit-sharing mechanismIn 1992, six years prior to production beginning atRaglan mine in Northern Quebec, Canada, minerepresentatives met with members of the MakivikCorporation (an Inuit-owned economic developmentcompany) and agreed to initiate a more formalconsultation process. The Raglan Agreement wassigned in 1995 between the Makivik Corporation,Raglan mine and local communities.The comprehensive socio-economic agreementaddresses environmental protection and mitigation,dispute resolution, procurement priority given tocompetitive Inuit businesses and employment. Theagreement also featured the first profit-sharingarrangement in the Canadian mining industry, whichprovided fixed annual payments during the earlyyears of the mine’s development until the minebecame profitable. The profit-sharing arrangementincludes a commitment to provide 4.5% of operatingprofit to the community partners in the agreementonce the mine has recouped its initial capitalinvestment.The money is placed in a trust, which in turndistributes 25% of the money to the MakivikCorporation (an Inuit-owned economic developmentcorporation), 30% to Kangiqsujuaq and 45% toSalluit. The Makivik Corporation and localcommunities distribute the funds among the 14communities in the Nunavik region, based on anevaluation of needs. The arrangement wasprecedent-setting and controversial within theindustry. The Raglan Agreement paved the way for arange of financial benefit-sharing measures inmining projects in Canada.4.5.1.2 Types of financial disbursement mechanismsAgreements should document disbursementprocedures, rules or criteria that limit and definehow the money in the agreements can be spent andon which beneficiaries. These mechanisms shouldbe consistent with the broader purposes of theagreement and help support the objective of buildinga sustainable future for the community.Financial packages may be channelled through avariety of disbursement models, as outlined below.Typically, funds will also be allocated to cover theadministrative costs of managing each of thesemodels. The pros and cons of different modelsshould be carefully explored and either agreed in fullor in principle during the negotiations for theagreement. These matters should not be left to bedealt with after the agreement has been settled.• Payment to named individuals or groups – thistype of disbursement model will usually be madeas a one-off payment or an annual payment, andmay cover financial compensation for specificdamage that the project is expected to cause orpayment for the use of, or access to, land. Thepayment will usually not involve the establishmentof governance structures to administer it.• Payment to an indigenous group through itsrepresentative organization – like the Raglan minemodel, this type of disbursement will usually be inthe form of a one-off payment or an annualpayment, and may also cover compensation forspecific damage that the project is expected tocause a third party or payment for the use of, oraccess to, land. In these cases, funds tend to bepaid into a bank account held either solely by theindigenous representative organizations or jointlywith the company.• Payment through an intermediary organization(such as the government or an NGO) – this modelinvolves funds being paid to and administered byan intermediary organization external to either theindigenous group or the company.65 Good Practice Guide Indigenous Peoples and Mining

4• Payment into a company internal fund orprogram – this model involves funds beingmanaged internally within the company, or paid intoa specially set-up fund, on behalf of the indigenousgroup, which is usually a formal organizationalstructure within the business, with agreed budgets,and decision-making criteria that may involveexternal stakeholders. One model that isincreasingly being favoured is keeping the capital ofthe trust intact, with the communities using theinterest from the capital to finance immediateneeds. However, this needs to be balanced withdemands for more immediate distribution offinancial benefits.• Payment into an external trust, fund orfoundation – these are usually legally distinctentities set up separately from each of thecompany, the indigenous representative body or thegovernment, and with the specific purpose ofmanaging and disbursing funds. There are variousimplementation models for trusts/funds. The fundsinto trusts/funds may be disbursed immediatelyand/or invested for future use. Funds may also beset aside for use beyond the life of the mine, whichcan ensure that there are ongoing benefits forfuture generations. For example, future generationtrusts are trusts, usually established by or forlandowner companies, in which a proportion ofmining-related benefits (often payments fromproject revenue) are paid, for use at a future point intime, usually after mine closure.There are often strict legal rules that determine whata trust can or cannot do, how it must be managed andits relationship with its original donor (i.e. thecompany). These rules vary from one country toanother. For example, the concept of a trust is notrecognized in some jurisdictions such that alternativestructures may need to be considered. Theindependent status of trusts may also allow them tobe tax-efficient and attract funding from othersources, such as government revenues or financialstreams from other companies. Trusts/funds mayinclude arrangements where management andownership is transferred over time to the community(as part of a wider effort to increase community selfgovernance/self-determination).Establishing charitable trust fundsUnder the terms of the Community PartnershipAgreement the Boddington mine operation inWestern Australia provides annual financialassistance to the Gnarla Karla Booja. The money isdisbursed to a charitable trust managed by anindigenous group. The charitable trust will be theprincipal mechanism for managing all the financialbenefits received from the mine. A RelationshipCommittee representing the Traditional Owners andthe mine owners has been established. Thiscommittee will decide how the money will bedisbursed in the areas of local businessdevelopment, scholarships, school retentionprograms and community projects.Trust Fund for Community DevelopmentThe principal mechanism for funding the objectivesof the Community/Indigenous Peoples DevelopmentPlan (C/IPDP) for the Sepon mine in Laos is the Trustfund for Community Development. The eightmemberboard of the Fund comprises company,government and representatives of the two mainethnic groups. A 17-member committee – also drawnfrom the various stakeholder groups, and includingthe chiefs of the six villages in the mine’s area –undertake the day-to-day running of the trust fund.The fund supports projects in the areas of education,agriculture, transportation, utilities and health.Education projects include three government-runschools whose construction was financed by thetrust, and adult training to reintroduce traditionalweaving skills that had been lost when people fledthe area during the Vietnam War. The agriculturalprojects were linked to the other areas of the C/IPDPsuch as business development, health, the weavingproject, rehabilitation and mine closure.For further information on governance structures for trusts and foundations, see Strategic Community Investment: A Good Practice Handbook for CompaniesDoing Business in Emerging Markets http://www.ifc.org/ifcext/sustainability.nsf/Content/Publications_Handbook_CommunityInvestmentGood Practice Guide Indigenous Peoples and Mining66

4 agreements4.5.2 Employment and contractingopportunitiesAgreements may include employment and contractingprovisions for Indigenous Peoples (although theseprovisions can also be provided by companies toindigenous groups outside of agreements).Employment and procurement provisions can offeropportunities for indigenous men and women tofurther benefit from mining industry operations,particularly in areas where there are few othereconomic opportunities.Some agreements contain quite explicit targets inrelation to employment and business development andspecify actions and timelines for achieving this,whereas others are restricted to general statements ofcommitment to preferentially employ, or contract,Indigenous Peoples. There is an ongoing debate inindustry about the merits of setting numerical targets,but experience has shown that commitments toproviding employment and business opportunities aremore likely to be taken seriously – both within thecompany and by the community – if the agreementidentifies specific actions to advance these objectives.(See Sections 5.3.1 and 5.3.2 for a discussion ofpractical steps that mines can take to increaseindigenous employment and generate businessopportunities.)By way of example, the Gulf CommunitiesAgreement, which covers MMG’s Century mine in farnorth Queensland, Australia, includes a scheduledevoted specifically to employment and training,which covers matters such as formation of anEmployment and Training Committee with localindigenous representation; development,implementation and monitoring of an employmentand training plan; skills auditing; provision ofeducation, employment and training advice;employment of support personnel; the establishmentof regional infrastructure; and communications withthe communities about the progress of Century minein the Gulf region. This has contributed to Centurysustaining one of the highest rates of indigenousemployment of any mine in Australia.Well-designed agreements can provideindigenous groups with some level ofassurance and accountability toensure that the company will manageenvironmental, cultural and socialissues to high standards.67 Good Practice Guide Indigenous Peoples and Mining

44.5.3 Environmental, cultural and socialimpact managementMining industry projects can pose significant risksto the environment, communities and their culturalheritage, and some indigenous groups may haveexperience of projects not managing these riskseffectively. Well-designed agreements can provideindigenous groups with some level of assuranceand accountability to ensure that the company willmanage environmental, cultural and social issuesto high standards. This increasingly includesparticipatory monitoring programs, which activelyinvolve people from indigenous groups and draw ontheir traditional knowledge. 12Establishment of community-managedsocio-economic monitoring committeesEarly in the development of Diavik Mine in Canada’sNorthwest Territories, the project team made acommitment to provide training, employment andbusiness opportunities to people from the NorthwestTerritories. To provide a formal mechanism to ensureDiavik’s commitments were appropriatelyimplemented and monitored, the environmentalassessment of the Diavik Diamond Mine included arequirement for a Socio-Economic MonitoringAgreement (SEMA).As part of the agreement Diavik formally involvescommunities in monitoring and in an advisorycapacity through the Diavik Communities AdvisoryBoard. The government of the Northwest Territoriesand the mine each have a representative on theboard, which otherwise comprises community elders.The board provides recommendations to thecommunities, government of the NorthwestTerritories and the mine itself. A similar committeestructure helps to ensure that the company adheresto the environmental agreement.12See the CommDev study and tools on Managing Risk and Maintaining License to Operate: Participatory Planning and Monitoring in theExtractive Industries. This study focused on communities in general, rather than indigenous communities specifically, but most of the toolsidentified are applicable in the latter context as well. www.commdev.org/content/document/detail/2037)Good Practice Guide Indigenous Peoples and Mining68

4 agreements4.5.4 Institutional arrangements forongoing governanceLeading practice agreements typically include arange of provisions around governancearrangements for managing the relationship betweenIndigenous Peoples and the mining company on anongoing basis. Governance arrangements shouldhave the ultimate objective of providing assurance toall concerned parties as to the transparency,accountability and successful achievement of theobjectives of the agreement.Actions that can be taken to advance these goalsinclude:• Establish a liaison committee comprising bothindigenous and company representatives (andpossibly others; for example, representatives fromlocal government authorities) to oversee theagreement, deal with implementation issues andprovide a forum for addressing disputes. Someagreements also provide for the formation ofcommittees to address specific functional areas (e.g.employment and training, cultural heritagemanagement). It is important that the role, functions,jurisdictions and powers of these bodies are clearlydefined from the outset, to avoid confusion andconflict later on. (For example, is the committeeadvisory only, or does it have decision-makingauthority? If the latter, what is the procedure forreaching decisions?)• Detail financial governance arrangements; forexample, the creation of trust mechanisms withclearly defined spending priorities, independentinvestment advice and external financial oversight(see above).• Document processes for resolving disputes overthe interpretation and application of agreementprovisions. Where there is no statutory disputeresolution scheme in place, dispute resolution is bestmanaged through a series of escalating mechanismsfrom less formal, amicable resolution to more formalmeetings between the two parties, mediation, toindependent arbitration. Agreements usually providethat the dispute resolution mechanisms are withoutprejudice to the legal rights of the community andcompany. However, it is generally in the long terminterests to avoid recourse to the courts unless thereis no effective alternative. (See Section 6 for abroader consideration of dispute and grievanceprocesses.)• Require ongoing monitoring and reporting onactivities undertaken pursuant to the agreement,compliance with key provisions, and actions taken toaddress issues and concerns raised by the parties.Reporting back should preferably be to the liaisoncommittee in the first instance, but in the interests oftransparency some form of regular public reportingshould also be considered.• Build in regular reviews that provide anopportunity to stand back and assess progressagainst the objectives of the agreement and to modifyand refocus the agreement as appropriate. This mayinvolve splitting the agreement into thosecomponents that cannot be easily or regularlyaltered, as opposed to those which need to beregularly reviewed.Governance arrangements shouldhave the ultimate objective ofproviding assurance as to thetransparency, accountability andsuccessful achievement of theobjectives of the agreement.69 Good Practice Guide Indigenous Peoples and Mining

4One of the issues that companies will need toconsider in relation to governance arrangements iswhether and under what circumstances they arewilling to share decision-making power withindigenous groups and their representatives. There isa natural caution among companies about how muchcontrol to concede, but giving Indigenous Peoples avoice in the future direction of the project promotes asense of shared responsibility and is a way ofbuilding confidence about the project. This, in turn,might help the company to secure the support oflocal communities if required later on in the projectlife cycle.For example, at one mining development in northernAustralia, Traditional Owners were very concernedabout how mining might affect the environment and,in particular, the flow and quality of local waterways.This was addressed by including in the agreementprovision for the formation of an EnvironmentCommittee, the majority of whose members wouldbe Traditional Owner representatives. Among otherthings, the agreement specified that matters couldbe referred to an independent adjudication panel ifthe committee and mine management could notagree on how an environmental issue should beaddressed. The panel’s power extended to being ableto order the cessation of mining and processingactivities until the problem is addressed. Theseprovisions have never been invoked, but thewillingness of the company to agree to them was oneof the factors that helped to secure Traditional Ownersupport of the project.Leaders of Putput Village sorting out food and pigs for village groups at a village dispute resolution ceremony,Lihir, Papua New GuineaSource: Lihir GoldGood Practice Guide Indigenous Peoples and Mining70

4 agreementsCompany/community committee to governagreementThe agreement for the Raglan mine in Canada (seecase study in Section 4.5.1 for background) isgoverned by the six-member Raglan Committee,comprising Salluit, Kangiqsujuaq and the MakivikCorporation representatives, and three Xstrata Nickelrepresentatives. The committee meets four or fivetimes each year and addresses issues that may arisebetween the company and the local communities.The results of all environmental monitoring arereported to the committee. Should mitigationmeasures not be acceptable to members of thecommittee, a formal arbitration process is in place,although this has never been invoked.Since 1995, the committee has had a significantinfluence on the manner in which the mine isoperated. For instance, concerns were raised thatnormal shipping practices were potentially disruptiveto the migratory patterns of the seal population.Normal shipping – which involves ice-breakers – alsointerfered with traditional Inuit hunting activity duringspecific seasons. These issues were examined by theRaglan Committee, and it was collaboratively agreedthat all shipping would cease between 15 March and15 June each year.Another, very important, issue to address in relationto governance is that of capacity. Actively involvingIndigenous Peoples in the governance of theagreement (say, as representatives on liaisoncommittees, or as board members on trusts) is adesirable objective, but can be challenging for peoplewho may have had limited exposure to Western-styleprocesses and structures (or, in some cases, noexposure at all). To address this, companies shouldbe prepared to provide financial and in-kind supportfor capacity-building activities in areas such as legaland negotiations training, development of leadershipskills, meeting procedure, institutional governanceand board member responsibilities, and businessdevelopment and management.A good example of capacity building is provided bythe Cerrejon mine in Colombia, which has helpedWayuu communities to understand better how theycan access royalties (paid by Cerrejon andadministered by government entities) and toparticipate in the so called “Planes Integrales deVida”. This has allowed indigenous communities toshape local development plans according to theirown interests and to access public funds (Source:Second Progress Report on Cerrejón's SocialCommitments, April 2009.companies should be prepared toprovide financial and in-kind supportfor capacity building activities.71 Good Practice Guide Indigenous Peoples and Mining

44.6 Implementing agreementsPlanning for implementation is fundamentallyimportant, as it will ultimately determine the successor failure of an agreement. Companies can also placethemselves at risk of legal or political action (such asblockades and demonstrations) and possibly also atthe risk of breaching the terms of any permits theyhave been issued if they fail to follow through oncommitments made in agreements.As just discussed, the issue of implementation canbe partly addressed at the agreement-making stage,by setting up appropriate governance processes andbuilding in monitoring and review requirements.Companies, for their part, can facilitateimplementation by ensuring that:• agreement obligations are fully documented in anaccessible form• responsibility for implementing differentcomponents of the agreement is allocated at anearly stage and people know what is expected ofthem• someone within the organization has overallresponsibility for the ongoing management of theagreement• an up-to-date register is maintained indicatingwhat action has been taken, is in train or proposedto address specific agreement obligations• action plans are aligned with the agreement• there is ongoing internal monitoring of compliance• capacity building remains a focus throughout thelife of the agreement, recognizing that bothcompany and community personnel involved inmonitoring and implementation will change overtime.Reviewing the implementation andeffectiveness of company/communityagreementsThe WCCCA is a comprehensive agreement signed inMarch 2001 between Rio Tinto Alcan, the Queenslandgovernment and numerous Aboriginal parties onWestern Cape York Peninsula, Australia. In late 2003,the company commissioned a review of theimplementation of WCCCA by two academics withexpertise in indigenous relations and a seniorcommunity relations adviser from Rio Tinto.Findings of the review were that there had been goodprogress in implementing the agreement in the areasof employment and training, cultural heritageprotection, the initial establishment of governanceand administration systems, and internal companysupport for local indigenous businesses. However,the review found a general lack of knowledge andunderstanding among company employees andcommunity members about the content and intent ofthe agreement.Subsequently, the company took action to addressthese issues, including by clarifying internal lines ofresponsibility, strengthening monitoring and reviewprocesses, providing an increased level of capacitybuilding support for indigenous organizations andinitiating a further round of company/communityengagement about the agreement and its objectives.Source: P. Crooke, B. Harvey and M. Langton, “Implementing andMonitoring Indigenous Land Use Agreements in the Minerals Industry: TheWestern Cape Communities Co-existence Agreement’”, in M. Langton et al,Settling with Indigenous People, Sydney: Federation Press, 2006.Implementation is not simply about ensuring thatthere is formal compliance with the terms of theagreement. While this aspect is obviously important,the most effective agreement managementprocesses are those that are outcome focused ratherthan just process focused. This requires keeping theultimate aims of the agreement clearly in sight,monitoring performance against these aims andbeing prepared to change practice, and even theagreement itself, where it is apparent that thedesired outcomes are not being achieved. This canonly be achieved if there is commitment by bothparties to making the agreement work and if there isgood leadership at both the company and communitylevel.Good Practice Guide Indigenous Peoples and Mining72

5managingimpacts andsharing benefitsTwo generations of Aboriginal people in the Kimberly region, Western Australia. There are many different languagesspoken by aboriginal people in the Kimberly who share religious and other beliefs across the region.Source: Rio Tinto Diamonds73 Good Practice Guide Indigenous Peoples and Mining

5 Managing Impacts and Sharing BenefitsYanacocha mine worker and child, Department of Casanare, PeruSource: Newmont75 Good Practice Guide Indigenous Peoples and Mining

55.2.1 Addressing the likelihood of a projecthaving a negative impact at the design stageMuch of the risk that a project may have an adverseimpact on the community can be addressed in theproject design phase. This is true not only for theproject’s environmental impacts (e.g. landdisturbance, noise, dust, water use, water quality,biodiversity) but also the project’s socio-economic,cultural and political impact. For example, the risk ofuncontrolled in-migration into indigenous landsmight be reduced by minimizing road construction(see the IFC publication, Projects and People: AHandbook for Addressing Project-Induced In-Migration). Placement of workforce camps somedistance from indigenous communities will lessenthe risk of sexual or other contact betweenIndigenous Peoples and project workers, or of localpeople getting easy access to alcohol (althoughbasing indigenous workers in these camps mightalso increase the burden on those left behind in thecommunities). Similarly, resettlement anddisturbance of cultural heritage sites can often beavoided through giving sufficient advance thought tothe location and layout of a mining operation and tomine planning.IFC policy, as set out opposite, makes it clear thatcompanies should make every effort to avoidresettlement of indigenous communities.Indigenous Peoples and resettlementResettlement, whether physical or economic, can bea major and critical impact of mining projects, and isconsidered especially contentious with regards toIndigenous Peoples. Due to the distinct attachmentand relationship to lands, territories and resourcesthat many indigenous groups have, and a widespreadhistory of dispossession and forced removals,resettling Indigenous Peoples is considered to lead toparticularly adverse impacts on their culturalsurvival.The International Labour Organization ConventionNo. 169 on Indigenous and Tribal Peoples states thatIndigenous Peoples should only be relocated fromtheir lands in exceptional circumstances and onlywith their free and informed consent. To date, 20countries have ratified the convention, 14 of these inLatin America.Article 10 of the UNDRIP states that: “Indigenouspeoples shall not be forcibly removed from theirlands or territories. No relocation shall take placewithout the free, prior and informed consent of theIndigenous Peoples concerned and after agreementon just and fair compensation and, where possible,with the option of return.”The International Finance Corporation’s (IFC’s)standard for companies to apply where projectsaffect Indigenous Peoples (Performance Standard 7)recommends that companies should make everyeffort to avoid any physical relocation of IndigenousPeoples from their customary lands.Much of the risk that a projectmay have an adverse impact on thecommunity can be addressed in theproject design phase.Good Practice Guide Indigenous Peoples and Mining76

5 Managing Impacts and Sharing BenefitsAltering site design to enhance community water supplyAn ethno-ecological study of the Xikrin indigenous land was undertaken as part of the installation licensingprocess for Onça Puma Mining Project, a nickel extraction and processing refinery located in the Brazilianstate of Pará in the Amazon region.The study’s scope was very wide and included overall ecological characterization of the land; general social,economic, cultural and historical characterization of the Xikrin people; and detailed discussions about theproject’s impact on indigenous communities and land.Both extraction and processing facilities are located a few kilometres from the indigenous land and maincommunities. Although based in a tropical forest, the particular region where the Xikrin live has limited wateravailability and the community depends on the Cateté River for its survival. The river was already partiallydegraded by cattle farms and sewerage from nearby towns.The Onça Puma project initially involved using the Cateté River water for its activities, potentially furtherdepleting water quality and availability. During the fieldwork, the proposed use of the river was stronglyresisted by the Xikrin, especially by the women. The project team reported this concern to the company, andVale accepted the community’s position and made alternative arrangements for the project’s water supply.As an alternative measure, the company constructed a storage dam, built in such a way that it ensured thatlocal streams had water throughout the year, rather than only during the wet season. Therefore, as well asavoiding a potentially negative impact, the new design provided a positive benefit to the Xikrin and othercommunities.77 Good Practice Guide Indigenous Peoples and Mining

5Xikrin hunter carrying fresh-water turtles, Amazon rain forest, BrazilGood Practice Guide Indigenous Peoples and Mining78

5 Managing Impacts and Sharing Benefits5.2.2 CompensationAlthough the concepts of compensation and sharingbenefits often overlap in practice, they areconceptually different. Compensation is focusedprimarily on redressing loss or damage that can beattributed to a project (for example, loss of access toland and assets), whereas benefit sharing aims topromote broader economic participation in projects(for example, through royalty streams linked toproduction, or provision of employment and businessopportunities). Compensation should also bedistinguished from other avoidance, mitigation andenhancement measures used to address anypotentially adverse impact the project might haveand/or promote positive outcomes (for example, resituatingproject infrastructure, paving a road, raisingemployee awareness, etc.).In some jurisdictions, processes for determiningcompensation are specified by law; in other casescompensation may be a negotiated outcome (eitherwithin or outside of a legal framework).Compensation for disruption, displacement, anddamage or loss of assets is a complex subject, evenmore so when “value” for many aspects ofindigenous life cannot be easily expressed inmonetary terms.Affected communities will often need considerableadditional developmental and financial support to reestablishproductive and sustainable livelihoodswhen these have been affected by projects. Agenerally accepted principle is that full and propercompensation should be provided for all assets andlivelihoods that are lost or irreparably damaged as aresult of the impact of a project, with the aim ofensuring that, at a minimum, people are left no lesswell off. Good practice is to try and enhance people’sposition and future so that they are left better off as aresult of the mining project’s presence.In order to meet the principle of “full replacementcost” (see box opposite), assets and livelihoods needto be valued accurately in economic terms, withintheir specific social and cultural contexts. In practice,this process of valuation can be difficult, particularlywithin indigenous communities, where property isoften not conceived of in terms of private ownership,where market forces are not at play or whereresources are not readily replaceable in cash terms.Land may be especially hard to compensate for orreplace, as simply providing someone with similarlyproductive land elsewhere would ignore theintangible bond derived from cultural and spiritualcoexistence. In the case of impacts that lead to lossor damage to intangible assets (such as damage tosacred sites, loss of cultural assets) the question ofhow to value compensation amounts is particularlycomplicated. Ultimately, therefore, the best way ofresolving these matters is likely to be through aprocess of fair negotiation, rather than by applying apredetermined formula.Compensation is too large a subject to cover in detailin this Guide but there are some good resources todraw on. For example, the IFC Performance Standard5 has comprehensive guidelines relating to thecompensation of people who have been resettled.IFC Performance Standard 5: LandAcquisition and Involuntary ResettlementGeneral Requirements:Compensation and Benefits for Displaced PersonsParagraph 8: When displacement cannot be avoided,the client will offer displaced persons andcommunities compensation for loss of assets at fullreplacement cost and other assistance to help themimprove or at least restore their standards of living orlivelihoods, as provided in this PerformanceStandard.Standards for compensation will be transparent andconsistent within the project. Where livelihoods ofdisplaced persons are land-based, or where land iscollectively owned, the client will offer land-basedcompensation, where feasible. The client will provideopportunities to displaced persons and communitiesto derive appropriate development benefits from theproject.www.ifc.org79 Good Practice Guide Indigenous Peoples and Mining

5The costs of getting it wrongResettlement proposal damages company shareprice and leads to abandonment of projectA large mineral deposit was discovered near atown of 20,000 people. The proposed mine wouldhave involved resettlement of the town, andinitially, the government agreed to theresettlement scheme. The company attempted aconsultation process but the community claimedthat information provided by the mining companywas neither accurate nor complete, and themagnitude of the impact of the project had beendownplayed. When the government failed to takeany action amidst growing community opposition,residents attacked the mine site and set fire tosome equipment. The community held a publicreferendum: there was a near-unanimous voteagainst the mine development. The governmentwithdrew its stake in the project and the day afterthe referendum, the company’s share price fell bymore than a quarter on a major stock exchange.The mine was not developed.Compensation for disruption,displacement, and damage or loss ofassets is a complex subject, even moreso when “value” for many aspects ofindigenous life cannot be easilyexpressed in monetary terms.Good Practice Guide Indigenous Peoples and Mining80

5 Managing Impacts and Sharing Benefits5.3 Strengthening the communityasset baseAs noted in Section 4 on agreements, social andcommunity investments can contribute to thecommunity’s asset base (the stock of physical,economic and human capital) and generalwell-being. A stronger asset base assists thelong-term sustainability of the community, which canbe one of the major benefits provided by a miningproject. The community’s well-being is also linked tothe sustainability of the community and can enhancethe quality of the relationship between the miningcompany and the community. An example is providedbelow.5.3.1 Employment and human capitaldevelopmentIndigenous Peoples are often economicallymarginalized, experience above-average levels ofpoverty and have below-average rates of participationin mainstream labour markets. This is due to acombination of factors, including accumulatedsocio-economic disadvantage, discrimination,geographical location and, in some cases, culturalpreferences for traditional lifestyles.One of the most tangible ways in which mining canbenefit Indigenous Peoples is by providingemployment opportunities in locations where theremay be few, if any, alternative sources of paid work.Jobs are important, not only because they generateincome and the benefits that flow from that, but alsobecause they provide opportunities to build skills andincrease mobility.Establishing mutual targets for engagementwith the indigenous communityNewmont operated the Kori Chaca gold mine inwestern Bolivia. A “contractual framework” wasdrawn up with the local indigenous Iroco communitythat covered social, technical, environmental andeconomic issues and activities agreed by both parties.Foundations of good practice for the project includedearly engagement by a skilled team includinganthropologists to understand the cultural needs,engaging a broad representative group, creatingeconomic and social benefits, and technical trainingfor local people to maintain projects. Mutually agreedtargets on local employment, enterprise development,support for small farmers, infrastructuredevelopment, and education and training weredeveloped.Employment: The company initiated a preemploymenttraining program to ensure that thecommunity members were job-ready. Otheremployment opportunities included contract andtemporary work in areas such as transportation, foodcatering and cleaning.Enterprise development: Local companies have beenestablished that bid for work in the mine’s supplychain. Micro-enterprises were established supplyingworking clothing such as overalls, vests, jackets, etc.Micro-loans provided by the company have beenrepaid.Support for small farmers: The company engaged incapacity building for cattle farmers through veterinaryservices, improvement of the local genetic stock andsupport for rental of grazing pastures.Infrastructure development: These included acommunity centre, (including medical facility, library,computer room), water tanks and supply pipes andimprovements to the town’s sewage system. Theconstruction of a town square helped boost thecommunity’s sense of pride in their town.Education and training: The community centre, libraryand computer room facilitated educational activitiesfor children, and training courses for members of thecommunity in literacy, use of machinery and heavyequipment, car maintenance and repair, andindustrial mechanics.81 Good Practice Guide Indigenous Peoples and Mining

5Making a commitment to indigenous employmentsends a clear signal that a company is determined toshare benefits at the local level and build positiveand long-term development initiatives. This isparticularly the case if the company can show that itis focused not just on meeting the short-term labourneeds of an operation, but on growing the labourpool and developing the skills and capabilities ofpeople in the longer term. A company may need tofacilitate this process by ensuring that nonindigenousmanagers are trained (on an ongoingbasis) in cultural understanding to support and workwith indigenous employees from the indigenouscommunity.Attracting and retaining employees from theindigenous community will be more challenging insome instances than in others. Some indigenouscommunities derive a significant amount of incomefrom social welfare, rather than direct employment.This may pose a challenge in terms of people fromthese communities transitioning from welfare towork, due to a lack of exposure to mainstreamemployment. Other communities have no statebasedwelfare support but may lack the skills andcapacities to meet minimum employmentrequirements. In addition to work readiness, anddepending on their particular circumstances, therecan be a variety of barriers to the employment ofIndigenous Peoples, including:• lack of education and relevant training• geographical isolation• cultural beliefs and practices• challenges in balancing mainstream employmentwith family and cultural obligations• poor health.As the case studies below illustrate, leading miningcompanies appreciate that socio-economicdisadvantage can hinder the recruitment andretention of Indigenous Peoples, and are now takinga more holistic, long-term approach to addressingissues relating to the employment of people fromindigenous communities.Establishing innovative local training andemployment programsAt the Donlin Creek mining project in northernAlaska, an innovative local hiring program wasestablished to provide employment and skills trainingfor the Indigenous Peoples of the Yukon-Kuskokwinregion. In order to provide them with stable jobs anddevelop their skills, the company sought primarily toemploy people from the local indigenous community,so far as possible.A cross-cultural outreach plan was implemented atthe Donlin Creek project in order to try and gain adeeper understanding of the social, cultural andeconomic differences between indigenouscommunities and non-native employees. To buildtrust, a local Alaska Native was hired as the programcoordinator who played an important role indeveloping a solid working relationship betweenvillages and the project. Interviews and discussionswere held with community leaders in order todevelop appropriate workplace strategies.The results of the action plan included the following:• The company’s drug policy was redrafted.Incentives were included for employees to improvetheir performance and be supported to remaindrug and alcohol free.• An on-site professional counsellor was hired,specializing in substance abuse, familycounselling, workplace counselling and stressmanagement.• Worker rotations were adjusted to allow more timeat home, a good monthly wage and time fortraditional subsistence activities.• Cultural sensitivity training was conducted for bothNative and non-Native employees.• Large gathering places, camp dining andrecreational rooms were constructed to allow formore traditional, open interaction in a family-likesetting.Currently, 92% of site employees and 90% of crewsupervisors are native Alaskans. A stable andincreasingly effective and productive workforce hasemerged, as the Donlin Creek project moves towardsthe permitting, construction and operating phases.Good Practice Guide Indigenous Peoples and Mining82

5 Managing Impacts and Sharing BenefitsEstablishing educational programs topromote continued developmentThe Papuan province is one of Indonesia’s mostremote regions, an area without a long history ofadvanced educational programs. Job trainingprograms in this area must offer more than technicalskills development.The Nemangkawi Mining Institute was established byFreeport-McMoRan Copper & Gold’s PT FreeportIndonesian affiliate in 2003. Since its inception,several thousand individuals have participated in theinstitute’s pre-apprentice, apprentice and adulteducation programs whose objective is to provideworld-class education, competency training andemployment priority to qualified indigenous Papuans.Enrolment priority is weighted towards individualsfrom the Amungme and Kamoro ethnolinguisticcommunities nearest to Freeport’s project area.Graduates of the Nemangkawi program can acceptemployment anywhere they like, but most seek jobsat the Freeport operations. Since the institute’sopening, more than 1,000 apprentices have beenhired as employees of PT Freeport Indonesia orpartner companies.Whereas Nemangkawi’s mission from the start wasto focus on provision of industrial and technical skillsfor the local workforce, the institute is alsoaddressing a need for advanced professionaldevelopment. In partnership with PT FreeportIndonesia and the prestigious Bandung Institute ofTechnology (ITB), Nemangkawi offers a Master ofBusiness Administration degree program, withclasses designed around participants’ workschedules. The first 40 graduates of the programreceived diplomas in 2009.5.3.1.1 Indirect employmentTypically, companies use a range of contractors forbuilding, operating and providing services to miningprojects. These areas all provide potentialopportunities for the employment of local IndigenousPeoples.At the contract tendering stage, mining companiescan make it clear that successful tenderers will beexpected to have plans and programs for indigenoustraining and employing members of the indigenouscommunity. For large contracts Indigenous Peoplesmight be working directly with the main contractorand/or with the sub-contractors working for the maincontractor.Just as with mining companies, contractors can alsoassist with the creation of business opportunities forIndigenous Peoples (see Section 5.3.2).5.3.1.2 Attraction and recruitmentRecruitment procedures should be fair andtransparent and perceived as such by IndigenousPeoples. Specific strategies for overcomingtraditional barriers to recruitment include:• use local knowledge gained from the localindigenous communities or from credible thirdparties to help identify potential recruits• focus on face to face rather than writtencommunication with potential applicants• provide pathways to employment such asdeveloping work-readiness programs that prepareIndigenous Peoples for the transition into themainstream workforce – this might include, forexample, mine access and vocational trainingprograms; scholarships; vacation work experienceand employment; literacy, numeracy and otherskill development programs• provide cultural awareness programs for allemployees – indigenous and non-indigenous – aspart of induction and re-induction processes (seeSection 2.7.1)• employ a transparent process for selectingcandidates that includes opportunities for womenand youth, and offers a dedicated technical andother skills training program.83 Good Practice Guide Indigenous Peoples and Mining

55.3.1.3 RetentionSpecific retention strategies may have to be developedfor employees from the indigenous community, whooften face particular challenges in balancing work andfamily commitments and making the transition to themainstream workforce. Trained personnel cansometimes be lost because of misunderstandings orcultural obligations, such as attending traditionalceremonies, weddings or funerals for extendedperiods; practising cultural or spiritual rituals andrites; and, usually in the case of women, maintainingdomestic and carer responsibilities. Furthermore,many indigenous groups practise some forms ofsubsistence-based livelihoods that can have asignificant spiritual and cultural meaning. In thesecases, Indigenous Peoples may wish to take advantageof employment opportunities while still being able tomaintain subsistence-based livelihoods during certainparts of the year (such as hunting migratory animals).Strategies for increasing retention include:• provision of ongoing mentoring and support• special leave for employees from the indigenouscommunity to fulfil cultural requirements(ceremonies, family events, initiations/weddings/funerals)• more flexible work rosters (e.g. extended andseasonal leave)• provision of fair wages and benefits and careerdevelopment opportunities• provision of family support• addressing racism and other forms ofdiscrimination in the workplace and promotingcultural understanding• following up with employees who resign, to ensurethat there is a proper understanding of why theyleft.5.3.1.4 Career developmentMany of the jobs currently held by Indigenous Peoples inthe mining industry are entry-level positions, reflectinggenerally low levels of formal education and limitedexposure to mainstream employment experiences.Longer term, however, the goal should be to haveindigenous employees working in all levels of theorganization. This objective can be assisted by providingindigenous employees with career developmentopportunities and training and educational support toobtain qualifications. If employees from indigenouscommunities have the opportunity to develop theircareers, they will be more likely to stay in the miningworkforce over the longer term; they will also havegreater employment mobility when and if the minecloses.Another important reason for increasing the number ofemployees from indigenous communities in skilled rolesand supervisory and management positions is to providepositive role models within their communities and in theworkplace. An example of an initiative along these linesis Rio Tinto’s Diavik Mine First Nations LeadershipDevelopment Program (see case study below).5.3.1.5 Complying with labour standardsIn providing local employment, companies also need toensure that appropriate labour standards are being metand that local employees are treated equitably. Theexample below illustrates how a company’s failure tomeet labour standards for indigenous employees canlead to protracted difficulties.The costs of getting it wrongPerceived deficiences in working conditions leadingto breakdown in employee relationsIn protest at a company’s perceived failure to provideappropriate working conditions, workers from localindigenous communities closed the gates in order toprevent expatriate managers from entering the minesite. The government’s labour department investigatedand found that working conditions violated labourlaws, citing inadequate food and unsanitary facilitiesand housing. Despite corrective measures beingundertaken to the government’s satisfaction, clashescontinued to occur between local and expatriateworkers. Work had to be stopped several times for upto a week at a time, and the police were called tointervene on at least two occasions.Good Practice Guide Indigenous Peoples and Mining84

5 Managing Impacts and Sharing Benefits5.3.2 Creating business opportunitiesMining companies can share benefits and contributeto the economic development of indigenouscommunities through the downstream and upstreambusiness opportunities they create. Theseopportunities can range from small-scale operationsthat require only a small amount of start-up capital(for example, cleaning or gardening services, supplyof fresh vegetables) through to major servicecontracts (for example, trucking contracts) and jointventures (see case study below). Supporting thedevelopment of businesses, particularly those thatare not dependent on a single mining operation, willhelp build the economic resilience of communitiesand their capacity to cope with the impact of a minebeing closed or a project being wound down.Opportunities for business creation need to beidentified on a case-by-case basis, having regard tosuch factors as the extent of interest in thecommunity, the level of business expertise, thecapacity of local providers to deliver the requiredservices, distance from markets, ease of access tocapital and so on. Where indigenous communitieshave been marginalized from the mainstreameconomy and do not have a tradition of involvementin business, the opportunities may be quite limited,particularly in the short-term. However, there are arange of actions that companies can take to buildlocal capacity and provide more economicopportunities over time. These include:Establishing joint ventures to capitalize onlocal demand generated by mining anddrilling projectsFor many years, Canadian First Nations have beenattempting to capitalize on additional income from oiland gas development over and above the royaltiesand land bonuses received.Several First Nations have set up service companiesto supply the oil and gas industry in their areas. TheSaddle Lake Nation 2003 joint venture with WesternLakota Energy Services, an established drillingcompany in the oil and gas business, to provide oiland gas rigs drilling services to EnCana Corporationis one such service company.The joint venture is an equal ownership of the tworigs; however, full ownership of the rigs willeventually be transferred to the Saddle Lake Nation.The government Indian and Northern Affairs Canadaprovided the Saddle Lake Nation CAD$787,500 topurchase their share of the first rig. The venture hasprovided 10 direct jobs on the rig and 77 indirect jobsin the oil and gas industry for members of the SaddleLake Nation, as well as transferable and industryspecific training beyond the project, and on-the-jobtraining, safety and first-aid courses.• training indigenous groups on business andmanagement practices (either directly or througha third party), including financial literacy andtransparency of accounting processes• incubation of small businesses through mentoringand support• mentoring and supporting new businesses• reviewing tendering and procurement processes toensure that they provide genuine opportunities forlocal businesses• assisting local businesses to become compliantwith mining company requirements (e.g. on healthand safety)• helping with access to finance (ranging fromfunding a microcredit scheme through tofacilitating bank loans)• identifying suitable partners for joint ventures andother commercial arrangements.85 Good Practice Guide Indigenous Peoples and Mining

5Establishing and delivering on effectiveparticipation agreementsThe Diavik Diamond Mine is located in Canada’sNorthwest Territories. When operations began in1999, Rio Tinto signed a series of participationagreements with the government of the NorthwestTerritories and representatives of five Aboriginalgroups.The agreements provided for Rio Tinto to worktogether with the Aboriginal signatories to maximizethe project’s benefits to the community throughemployment, training, building local businesscapacity, as well as providing scholarships andsupport for a range of community projects.In order to raise the proportion of qualified Aboriginalsupervisors and managers employed at the mine,Rio Tinto launched an Aboriginal LeadershipDevelopment Program. Diavik also committed to hire,as a priority, local northern residents and Aboriginalpeople with traditional ties to the area.In order to meet commitments to local sourcing ofgoods and services, the mine has directed almostthree-quarters of its spending locally, outsourcingwork wherever possible. The mine makes efforts toprovide work to diamond cutting and polishing firmsin northern and southern Canada.An environmental monitoring advisory board, whichoversees the mine’s environmental impact,comprises representatives of the five Aboriginalcommunities, as well as government and industryrepresentatives.Other initiatives under the agreements includesupport for local educational, sporting and culturalprojects, such as the sponsorship of an annualdog-sledding tournament and publication of thebiographies of local Aboriginal elders.5.3.3 Improving infrastructure and servicesIndigenous Peoples often live in remote areas and canlack access to the basic services that governmentsnormally provide: water, roads, schools, health clinics,etc. As a result, indigenous communities frequentlysuffer from serious and widespread social and healthissues. Although the provision of services is usuallyundertaken by the state, in many circumstancesgovernments may not be in a position to provideinfrastructure and services due to lack of capacityand/or resources. In such cases, mining companieshave often been prepared to facilitate or provide basicservice delivery. Seeking local expert advice is essentialin these circumstances so as to ensure that any servicesor facilities are provided in compliance with anyapplicable legal requirements.The specific requirements of the indigenous communitywill invariably shape planning for provision ofinfrastructure and services (see case studies below).Targeted investment by companies – particularly if inpartnership with other parties, such as government,development agencies and NGOs – will help to supportoverall community development goals as well as createopportunities for skill building, employment andbusiness growth. Service provision work is high profileand, if done in a participatory and sustainable manner,builds significant goodwill between the company and thecommunity and potentially government at the locallevel.Sustainability of infrastructure and services, includingprovision for ongoing maintenance post-closure, shouldbe considered at the outset of a project. This can best beaddressed by strengthening management bodies fromthe indigenous community and ensuring that they areadequately resourced (e.g. through creation of acommunity infrastructure fund). Opportunities shouldalso be sought to partner or align with government andregional development plans, to ensure there is neitheroverlap in the provision of services nor a lessening ofgovernment responsibility to provide for its citizens.Good Practice Guide Indigenous Peoples and Mining86

5 Managing Impacts and Sharing BenefitsPartnering with development NGOsThe Maruwai Coal Project (MCP) in Indonesiacommitted to work with the villages in improvinginfrastructure, and improving health and hygiene inpartnership with the communities and governmentbodies. In order to deliver the water and sanitationinfrastructure, MCP contracted Yayasan CahayaReformasi (YCR) – an East Kalimantan-basednon-governmental organization specializing incross-sector water and sanitation projects in ruralareas.YCR undertook an initial feasibility survey and study,planning and design, construction, and managementand training work for the community in relation to anew clean water facility. YCR worked with the localcommunity, religious leaders, young people andacademics and as an indication of building goodwillYCR’s employees were accepted into and participatedin many community functions and activities.YCR then worked with the community to establish a“Clean Water Management Committee” drawn from across-section of villagers, chaired by the head of thevillage. The committee was responsible forimplementing the project and, upon its completion,managing daily operational activities including thecollection of water usage fees and repairs, andoverseeing operational repair and maintenance andoperational management. A community resourcemobilization team co-ordinated input from thevillagers. The team also managed communitydonations of land and resources for the project.Increasing community self-sufficiencyThe Los Bambas copper project is located in theCotabambas and Grau provinces of Peru. Xstrata’ssocio-economic profile of the area revealed that thelocal economy was based on barter, and that themain form of livelihood was subsistence farming onthe limited area of productive soil.Initial engagement was led by the company’scommunity relations team, which comprisedQuechua speakers. There was extensive consultationthrough community workshops with NGOs, localmayors, community leaders and schools. Workshopsinvolved visioning exercises where the communitygraphically represented the future improvements itwould like to see. Nutrition, health, domestic violenceand communications have all been identified asareas of focus.Action plans were drawn up, and projects includedimproving the area’s irrigation infrastructure. Thecompany worked with the local community toimplement an irrigation and hydroponics scheme toimprove grasslands and strengthen agriculturalmanagement. An overall objective was to improve thecommunity’s self-sufficiency, in particular bysupporting income-generating activities, improvingnutrition and improving education. In addition, anindependent advisory group comprising social andeconomic development experts has been establishedin order to ensure that the project proceeds in a waythat meets the community’s needs.A large investment in training andeducation may be required to enablegenuine participation of IndigenousPeoples in impact mitigation.87 Good Practice Guide Indigenous Peoples and Mining

5Building capacity for community developmentBHP Billiton Iron Ore has set a range of targets forstrengthening relationships with Martu people across itsPilbara operations, Western Australia. The targets areset out in the company’s Indigenous RelationshipsStrategy and cover employment, education, engagement,contracting, heritage and native title and partnerships.The company has collaborated with Oxfam Australia fora number of years on a program called CorporateCommunity Leadership Program. This program providedthe opportunity for employees that worked at thecommunity level across global operations to be exposedto community/participatory development as a means towork towards a sustainable and meaningful engagementand engagement process with the indigenous communitywherever BHP Billiton operated.5.3.4 Building capacity for communitydevelopmentDifferent parties may not always have the requisiteskills and capacities to implement agreements andprovisions, address risks when they arise, or managethe impact of an event when it occurs. A largeinvestment in training and education may be required toenable genuine participation of Indigenous Peoples inimpact mitigation, the implementation of agreements(see Section 4.6) and the development of benefitprograms. Companies, for their part, may also benefitfrom internal capacity building, as this case study fromAustralia shows.The program involved travelling with Oxfamrepresentatives through some of the Eastern Provincesof India and meeting with villages who were undertakingcommunity development processes. The companyrepresentatives also received continual training anddevelopment around the social sciences. The idea of theprogram was to return home post-exposure and look athow the managers could apply some of the lessonslearnt in the local community.As a follow up from work in the Pilbara, Oxfamundertook workshops with both the indigenouscommunity and also the service providers (includinggovernment and NGOs) to provide all parties with theopportunity to understand the participatory developmentapproach. This capacity and institutional strengtheningexercise assisted in operational procedures formanaging community affairs, running Aboriginal ownedor partnered enterprises, the effective use of availableservices and improved standards of well-being ofcommunity members.These efforts currently represent work in progress, andthe efforts will continue during the whole of the life ofthe mine. The overall objective is to enable the Martupeople to plan and implement initiatives, to co-ordinateservice delivery and to improve communication acrosscultures and organizations. The idea is that thecommunity will be able to articulate their priorities, andwith support (including moral support) from thecompany, present these issues to the government inorder to inform public policy.Good Practice Guide Indigenous Peoples and Mining88

5 Managing Impacts and Sharing Benefits5.4 Cultural preservationCultural heritage management and preservation (orpreferably going beyond preservation by enhancingculture and increasing cultural importance)encompasses the protection and enhancement of themore tangible aspects of cultural heritage, as well asintangible cultural heritage such as traditionalpractices around governance, ceremonies, spiritualpractices and traditional knowledge. 13In a growing number of countries specific legislationis being developed or is in place to protect significantaspects of cultural heritage, such as archaeologicalsites, ethnographic 14 sites or areas and aspects oftraditional knowledge. In Australia, for example, theAboriginal and Torres Strait Islander HeritageProtection Act 1984 aims to protect "areas andobjects … that are of significance to Aboriginals inaccordance with Aboriginal tradition". 15 There may ormay not be tangible physical manifestations of thesecomponents; for example, archaeological sites bydefinition are physical sites, whereas ethnographicand traditional knowledge components may notalways have physical expressions.It is becoming more common for companies toprepare cultural heritage management plans(CHMPs) at the outset of projects, or whenexpansions are being planned. This is mainly done tomeet a legislative requirement, but some companiesnow do this voluntarily. Some leading companieshave also retrospectively developed plans for “legacysites”.Plans are best developed in partnership between thecompany and the respective indigenousrepresentative group(s). Where cultural heritage is indanger of being damaged, the responsible course ofaction is to provide full, open and honest informationabout impacts and seek guidance from traditionaldecision makers on how to plan to avoid or minimizedamage. Some companies have also assisted localIndigenous Peoples to be formally trained andmentored in the identification and protection ofcultural heritage.Any disturbance, damage or use of cultural heritagethe company management measures, which caninclude compensation, should be fully discussed,negotiated and agreed by the impacted indigenouscommunity. Failure to follow this process is likely tobreed mistrust and could pose a threat to thestability of a project.Broader community concerns and aspirations aroundthe preservation and enhancement of culturalheritage can also be dealt with in communitydevelopment plans and agreements, rather thanthrough CHMPs. Actions that companies can take inthis regard include:• funding the recording of languages, stories andsongs (e.g., Rio Tinto’s Diavik Mine in NorthwestTerritories, Canada has paid for the writing andpublication of biographies of indigenous leaders –see case study above)• helping to establish cultural centres or culturalhouses as a place for the communities to meet forcultural activities and also to receive visitorsthese can also serve as “keeping places” forcultural artefacts• supporting cultural workshops to maintain orstimulate the traditional skills and arts to youngpeople• sponsoring festivals to promote traditional danceand ceremonies• helping to generate a market for traditional artsand crafts• incorporating cultural rituals (e.g. smokingceremonies and “welcome to country”) intoworkforce inductions and company events.13See the UNESCO “Convention for the Safeguarding of the Intangible Cultural Heritage” (Paris, 2003),http://www.unesco.org/culture/ich/index.php?pg=00002 ).14A working definition of an ethnographic (or sacred) site or area is a site or area of ritual, mythical or ceremonial significance to IndigenousPeople based on their cultural customs and laws.15Aboriginal and Torres Strait Islander Heritage Protection Act, 1984, s.4.89 Good Practice Guide Indigenous Peoples and Mining

5 Managing Impacts and Sharing Benefits5.5 Environmental protection,rehabilitation and monitoringThe natural environment is of central importance tomany Indigenous Peoples, not only because theyoften depend wholly or partly on it for theirlivelihoods, but also because it has strong cultural,and often spiritual, significance.Companies can deal proactively with these issues bypartnering with Indigenous Peoples in identifying,planning, mitigating and monitoring environmentalimpacts, for example by:• including representatives from the indigenouscommunity in environmental assessment panels(although this has generally been initiated orrequired by governments rather than companies)• consulting widely with indigenous communities tounderstand their environmental concerns aboutmining and how these can be addressed• including Indigenous Peoples on environmentalmonitoring committees and involving them in thecollection and analysis of monitoring data (e.g.water samples).There are also many opportunities to involveIndigenous Peoples in environmental protection,rehabilitation and restoration. Examples includegathering seeds of native plants for use inrehabilitation, fire management and wildlifemanagement. Indigenous Peoples have often beenthe guardians of their territories for centuries andcan bring traditional knowledge and natural resourcemanagement practices to complement thecompany’s technical expertise.Preserving traditions and promotingarts and cultureFreeport-McMoRan Copper & Gold places a highvalue on learning about and preserving the uniquecultures of the company’s neighbours and partnerswho live near its PT Freeport Indonesia operations inthe Papuan province. The company’s communitysupport programs, in addition to working to broadenaccess to education, health care and economicopportunity, include a commitment to promote andcelebrate the unique Papuan cultures nationally andinternationally.Freeport has sponsored and supported culturalfestivals celebrating the world-class woodcarvingtalents, dancing and canoe-racing skills of theKamoro people who live along the southern coast ofPapua, while also supporting the Asmat CulturalFestival in the neighbouring Asmat Regency. PTFreeport Indonesia employees joined art enthusiastsfrom around the world to take part in a three-day artauction in October 2009. The auction of woodcarvings and woven pieces crafted by severalhundred Asmat raised nearly US$100,000 for thecarvers and their organizations. Funds were alsoraised to rebuild the Catholic Diocese of Agats’abbey, which was destroyed by fire last year. TheAsmat community, through its leaders, expressedthat the festival holds a much deeper significancethan being purely a commercial event. The fame ofAsmat art has brought international attention andinterest in Asmat culture from across the world.The natural environment is of centralimportance to many Indigenous Peoples.it has strong cultural, and often spiritual,significance.91 Good Practice Guide Indigenous Peoples and Mining

5Sustainability-centred decision makingDuring the development of Voisey’s Bay nickel minein northern Canada an innovative environmentalassessment and a set of associated negotiationsresulted in multi-stakeholder agreements betweenthe company, provincial governments, and theindigenous residents of Inuit and Innu identity.The Voisey’s Bay agreements represent“sustainability-centred decision making”. Theagreements brought together contesting parties withvery different histories, priorities and commitments.The main reasons for success fall in four broadcategories:Proponent capacity – ability of the company torecognize and adjust to regulatory and communitydemands for improved social and environmentalperformancePolitical commitment – the government ofNewfoundland and Labrador and the Innu and Inuitorganizations were firmly committed to achievingdurable social and environmental developmentLocal power – the Innu and Inuit gained effectiveinfluence and were able to play proper roles in theassessment and negotiation of the final agreementsaffecting their interestsSuitable implementation tools – as the Innu andInuit, along with the federal and provincialgovernments, were signatories to the Memorandumof Understanding that established the environmentalassessment panel, the panel review was theirprocess. The panel was successful in addressing theInnu and Inuit concerns in ways that all parties couldaccept.5.6 Preparing for mine closureIn the same way that mines can have a major impact onindigenous – and other – communities when they startup, closure can bring further significant changes tocommunities, particularly where the mine has been amajor source of income, employment and/or services(e.g. medical services, transport, support for localschools). Good practice is for closure planning tocommence early in the life of a project – ideally, at thedesign stage – and remain a focus across the life of themine. This planning should address the socio-economicas well as the environmental aspects of closure.Actions that responsible companies can take to mitigatethese impacts and build community resilience include:• ensuring that people are kept informed about whenthe mine is expected to close and the likely impactsthis will have on the community and region• engaging actively with community groups andorganizations on how this impact should beaddressed• working with organizations representing theindigenous community to develop benefit streamsthat will continue beyond mining (e.g., by creating“future generation” trusts and other forms oflong-term investment)• if desired by the local community, helping to developalternative forms of economic activity, such astourism or livestock raising, that are not dependenton mining• designing low technology physical infrastructure (e.g.water supply systems) that can potentially bemaintained by the local community post-closure• equipping employees with skills and qualificationsthat are potentially transferable to other industries inthe region and assisting local employees who areinterested in finding future work• helping to build community governance capacity.Good Practice Guide Indigenous Peoples and Mining92

5 Managing Impacts and Sharing Benefits5.7 Addressing discrimination andhistorical disadvantageThe underlying causes of the marginalization ofIndigenous Peoples are unlikely to be fully addressedthrough localized community development programs.In many cases, there will be structural barrierswithin society that hinder Indigenous Peoples fromintegrating and enjoying the rights of the majority ofthe population and perpetuate socio-economicdisadvantage. These may include discriminatorylaws, social stigmatization and poor, or non-existent,service delivery arrangements. The regional, social,economic and cultural transformations brought on bymining projects may well reinforce this sense ofdiscrimination.Well-designed company programs can help breakdown the marginalization experienced by IndigenousPeoples. While the primary responsibility of acompany is to the communities where its mines arelocated, there are opportunities for companies actingindividually and collectively to have an influence on abroader scale. Examples of initiatives that companieshave taken include:• Supporting research and training programsfocused on delivering better health and educationoutcomes for Indigenous Peoples. For example, inAustralia the Rio Tinto Aboriginal Fund issupporting a three-year pilot program to delivermobile ear, nose and throat health screening toAboriginal children in remote Queensland, as wellas the evaluation of a study of whethercommunity-appointed health brokers can improvethe hearing of Aboriginal children.• Advocating for and supporting policy change at thenational and/or provincial level where there arelaws that directly or indirectly discriminate againstIndigenous Peoples.• Providing financial and in-kind assistance tonational and local community organizations tostrengthen their resource base and build capacityso that they can advocate and represent moreeffectively. For example, BHP Billiton is a majorsupporter of Reconciliation Australia’s IndigenousGovernance Program, which is designed toidentify, celebrate and promote good practice inrelation to polices and matters affectingIndigenous Peoples.• Providing scholarships, training and mentoringsupport at the national and provincial level toassist young Indigenous Peoples developleadership and advocacy skills.• Building awareness among national orsub-national government officials in relation toIndigenous Peoples’ identity and rights (e.g., bysponsoring seminars and study tours).• Partnering with government to target thedevelopment of infrastructure and service deliveryinitiatives to assist geographically marginalizedindigenous communities (see case study below).• Partnering with national representative bodies toincrease investments, procurement andemployment opportunities for Indignous Peoples.there may be structural barriers thathinder Indigenous Peoples fromintegrating and enjoying the rights ofthe majority of the population.93 Good Practice Guide Indigenous Peoples and Mining

5Building sustainable indigenouscommunitiesIn June 2005, the Minerals Council of Australia (MCA)entered into a strategic partnership with theAustralian government through signing a five-yearMemorandum of Understanding (MoU). The MoUestablished a platform for government and industryto work together with Indigenous Peoples to buildsustainable and prosperous communities in whichIndigenous Peoples can create and take upemployment and business opportunities in miningregions.The MoU is founded on principles that guide activityat the regional level:• collaboration and partnership between the partiesbased on mutual respect• collaboration and partnership between the partiesand indigenous communities based on sharedresponsibilities and respect for culture, customsand values• the integration of sustainable developmentconsiderations within the MoU partnershipdecision-making process• joint commitment to social, economic andinstitutional development of the communities withwhich the parties engage.The minerals industry recognizes that companies canassist community development through providingemployment, training and enterprise developmentopportunities related to its mining activities.However, industry clearly differentiates between itsown responsibilities and government’sresponsibilities in delivering integrated basic socialservices to remote and regional communities,essential to building social and economic well-beingin indigenous communities. The MoU seeks to deliverenhanced government accountability and servicedelivery to Indigenous Peoples through improvedaccess to:• education to develop literacy and numeracyeducation• work readiness initiatives such as Fitness to Workprograms• drug and alcohol rehabilitation services• financial services• family support services, including childcare andcounselling services• human and financial capital to facilitate thedevelopment of enterprise in the indigenouscommunity.The MoU builds on previous relationships andpractices, but requires parties to agree onprinciples for engagement to ensure that increasedemployment outcomes for local IndigenousPeoples is the number one priority. Specifically, theMoU encourages parties to work together throughthe development of an overarching RegionalPartnership Agreement that provides a strategicapproach, with a focus on achieving high-levelalignment between the parties beforeconsideration of project details.An MoU National Steering Committee has beenestablished to oversee the implementation of theMOU. It includes representation from relevantgovernment agencies, the MCA and individualmember companies.There is a strong focus on evaluation of the MoU atboth the national and regional level, not only toassist effective communication of the successesand learnings of the project, but also to support thereplication of these new working arrangementsbetween government and industry to other minesites.Source: Department of Industry, Tourism and Resources. 2006.“Community Engagement and Development“, in Leading PracticeSustainable Development Program for the Mining Industry. AustraliangovernmentGood Practice Guide Indigenous Peoples and Mining94

6dealing withgrievancesAncient cave paintings, Patagonia, Argentina95 Good Practice Guide Indigenous Peoples and Mining

6 dealing with grievancesIn recognition of this growing focus on grievancemechanisms, in October 2009 ICMM released a pilottesting version of a guide on Handling and ResolvingLocal Level Concerns and Grievances, as part of itsHuman Rights in the Mining and Metals Sectorseries. 18 The ICMM Position Statement on Mining andIndigenous Peoples also contains an explicitcommitment to establishing appropriate mechanismsto dealing with Indigenous Peoples’ complaints andgrievances as well as those from Indigenous Peoplesand the wider community.ICMM Position Statement, Commitment 8:Supporting appropriate frameworks forfacilitation, mediation and dispute resolution.ICMM members may assist with or facilitate basiccapacity building for Indigenous Peoplesorganizations near their operations. In general,Indigenous Peoples as well as communities as awhole will be provided with a clear channel ofcommunication with company managers if theyhave complaints about a mining operation andtransparent processes through which to pursueconcerns.The ICMM guide recognizes that complaintmechanisms can provide a well-respected channelof communication between mining and metalscompanies and local people over issues of concern.In so doing, these mechanisms can serve as a tool tobuild trust and common understanding of the issuesand thereby strengthen stakeholder support forprojects. They also can help operations detect localconcerns at an early stage rather than leaving themunresolved with the potential to later erupt in moredamaging ways for the company.Close to when the ICMM guidance document wasreleased, the IFC published a good practice note onAddressing Grievances from Project-AffectedCommunities. 19 This note outlines various basicrequirements for dealing with complaints laid out inthe Performance Standards on Social andEnvironmental Sustainability for projects funded bythe IFC. Also relevant is the guidance tool onRights-Compatible Grievance Mechanisms, producedby the Corporate Social Responsibility Initiative of theHarvard Kennedy School in January 2008. 20Collectively, these various guidance documentsprovide a strong indication that there are growingexpectations being placed on companies to enhancetheir approach to dealing with community grievances,complaints and concerns; both for IndigenousPeoples and for communities more generally.A note on terminologyIn line with the approach taken in the 2009 ICMMguidance note on Handling and Resolving Local-LevelConcerns & Grievances, the term “complaintsmechanism” is used here as shorthand to describe theset of processes that a company may have in place todeal with local-level concerns and grievances.As discussed in the ICMM guide, community concernscan range from commonly occurring, relatively minorissues to more entrenched or serious ones that havebecome a source of significant concern or resentment.In addition, concerns and grievances may either beindividual or collective. They can be openly expressedin conversations between companies and communitiesor, for a variety of reasons, individuals or communitiesmay be reluctant to openly raise or discuss them.Some companies prefer to use other terms, such as“procedure” rather than “mechanism”, or “feedback”rather than “complaint”. However, these differences interminology are not critical provided that there is anunderlying commitment to providing localcommunities with a means of raising issues andconcerns relating to the company’s operations and toresolving these in a fair and transparent manner.18http://www.icmm.com/page/14809/human-rights-in-the-mining-and-metals-industry-overview-management-approach-and-issues19http://www.ifc.org/ifcext/sustainability.nsf/AttachmentsByTitle/p_GrievanceMechanisms/$FILE/IFC+Grievance+Mechanisms.pdf20http://www.hks.harvard.edu/m-rcbg/CSRI/publications/Workingpaper_41_Rights-Compatible%20Grievance%20Mechanisms_May2008FNL.pdf97 Good Practice Guide Indigenous Peoples and Mining

66.3 Sources of potential disagreement orconflictMany of the factors that may give rise to conflictbetween indigenous groups and mining companiescan be a source of conflict with non-indigenouscommunities as well. These include, for example:• establishing a mine in the absence of broadcommunity support• inadequate engagement or decision-makingprocesses• inadequate or inequitable compensation for land• inequitable distribution of benefits• broken promises and unmet expectations ofbenefits• failing to generate opportunities for employment,training, supply or community development• environmental degradation• disruption to amenity and lifestyle• loss of livelihood• violation of human rights• social dislocation• historical grievances not being adequatelyaddressed.In addition, however, there are some contextualfactors that have particular salience for IndigenousPeoples’ and their relations with mining companies.For example, a lack of respect (perceived or actual)for indigenous customary rights or culture, historyand spirituality, is likely to trigger a strong reaction.Similarly, issues around access to and control of landand the recognition of sovereignty are very importantfor many Indigenous Peoples and can lead to seriousconflict if they are not handled sensitively and withdue respect for the rights of affected groups.The costs of getting it wrongConcern over environmental damage and humanrights violations leads to the withdrawal of fundingby an institutional investorMany villagers were displaced and large tracts offorests were cleared in order to accommodate acompany’s bauxite refinery. As a result, the villagerslost their livelihoods and the ability to liveself-sufficiently. A court case on behalf of the villagerswas referred to the country’s Supreme Court, whichbanned the company from mining operations. Despitethis sanction, the company attempted to widen anaccess road – meeting with opposition fromcommunity protestors. Due to concern overenvironmental and human rights issues, aninvestment bank (and signatory to the EquatorPrinciples) issued a warning to the company, while aninstitutional investor entirely withdrew its funding ofthe company.The costs of getting it wrongLack of respect for customary rights of anindigenous community leading to blockades of amineWhen a customary authority representing theindigenous community rejected a company’senvironmental impact assessment, the nationalgovernment ignored the rejection and granted amining permit. Residents and some external expertsfeared that mine waste would end up flowing intonearby coastal waters. There followed several yearsof conflict between the company and community,including regular blockades of the mine site bycommunity representatives (leading to a mineshutdown and many expatriate employeesreturning home) and a protest march to theregional capital involving 3,000 people.Good Practice Guide Indigenous Peoples and Mining98

6 dealing with grievancesArmy and police preside over forced eviction of a Maya Q’eqchi’ community from a proposed mining area, Guatemalaissues around access to and controlof land can lead to serious conflictif they are not handled sensitively.99 Good Practice Guide Indigenous Peoples and Mining

66.4 Designing grievance mechanismsOn the basis of extensive multi-stakeholder andbilateral consultations, the UN SpecialRepresentative of the UN Secretary-General onBusiness and Human Rights, Professor John Ruggie,has proposed a list of six principles that shouldinform the design of judicial and non-judicialgrievance mechanisms. 21 Specifically, mechanismsshould be legitimate, accessible, predictable,equitable, rights-compatible and transparent. Theseprinciples underpin the approach outlined in theICMM guidance document.The Corporate Social Responsibility Initiative at theJohn F. Kennedy School of Government, HarvardUniversity has also produced a useful guidance toolfor companies related to rights-compatible grievancemechanisms. 22While there are many options, locally based andjointly designed processes that are not exclusivelycontrolled by the company are more likely to facilitateeffective and lasting solutions, particularly wherethey need to address more complex or seriousconcerns or grievances. This is consistent with theIFC design principle of “proportionality”, and with thetiered approach of ICMM which envisagesincrementally greater third party involvement as ameans of enhancing the trust in and independence ofthe mechanism. Ideally, these processes will havebeen discussed and agreed to as part of the earlyengagement process, before serious issues emergeor escalate.Responding promptly and effectively to the concernsof marginalized members of a community orneighbouring communities is particularly important.The mechanism also needs to be capable ofaddressing community issues that are based onperceptions and felt experience, as well as “hard”data. For example, concerns of the indigenouscommunity over deteriorating water quality may notalign with a particular mine’s environmentalmonitoring data, but should receive respectfulattention nonetheless.Wherever practical, agreed processes for dealing withcommunity grievances – and company obligations inregard to follow-up, monitoring and reporting – shouldbe formalized in an agreement with the community(see also Section 4).Case studies of functioning grievancemechanismsThe ICMM guidance note on Handling and ResolvingLocal Level Concerns and Grievances providesseveral examples from the mining industry offunctioning grievance mechanisms, includingNewmont’s Ahafo operation in Ghana and itsoperation at Batu Hijau in Indonesia, OceanaGold‘sDidipio gold and copper project in the Philippines,and the Tintaya copper mine in Peru (formerly ownedby BHP Billiton).See www.icmm.com6.4.1 Taking a holistic approachPolicies and processes for dealing with complaints,disputes and grievances ought to be seen as part of abroader, holistic, approach to risk management andcommunity engagement. Other key elements includeearly and inclusive engagement, comprehensiveimpact assessment and risk analysis, commitments tohuman rights and effective community developmentprograms. In the words of the CAO, “trust is not asubstitute for a grievance mechanism and a grievancemechanism is not a substitute for trust” (2008: p.8).Effective complaint-recording mechanisms can providean “early warning system” for emerging issues thathave not been predicted through other processes. Ifissues do emerge, companies may benefit from havingthe capability to receive, log, screen, assess, assignresponsibilities for management and respond to issuesas they arise, and as they escalate.21J. Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of theSecretary-General on the issue of human rights and transnational corporations and other business enterprises, April 2008 p. 24:http://www.unglobalcompact.org/docs/issues_doc/human_rights/Human_Rights_Working_Group/29Apr08_7_Report_of_SRSG_to_HRC.pdf22Rights-Compatible Grievance Mechanisms, A Guidance Tool for Companies and their Stakeholders, Corporate Social Responsibility Initiative,John F. Kennedy School of Government, Harvard University, January 2008 http://www.hks.harvard.edu/mrcbg/CSRI/publications/Workingpaper_41_Rights-Compatible%20Grievance%20Mechanisms_May2008FNL.pdfGood Practice Guide Indigenous Peoples and Mining100

6 dealing with grievancesA woman stands next to police officers during a protest against a proposed new mining law in Nabon, 330 kmssouth of Quito, Ecuador101 Good Practice Guide Indigenous Peoples and Mining

66.4.2 Ensuring cultural appropriatenessHow conflicts and disagreements are interpreted andhandled is shaped by culture, both indigenous andcorporate. For this reason, it is very important thatcompanies understand the cultural preferences thatindigenous communities have for dealing with disputes.Well-designed and executed baseline studies will helpto build this understanding. Advice from the IFC is that:“Grievance mechanisms need to make a cleardistinction between procedures used for mainstreamlocal population and those for Indigenous Peoples.Indigenous Peoples have unique attributes, includinglanguage, culture, and political, economic, and socialinstitutions. They are also more sensitive to issuessuch as alienation of customary land rights, claimsto natural resources, and impacts on culturalproperty. In addition, Indigenous Peoples may bepolitically marginalized and unfamiliar with (or do nottrust) engagement processes used by themainstream society.” 23The aim should be to integrate both indigenous andcorporate ways of resolving problems into thecomplaints mechanism. Systems and procedures mustadequately reflect Indigenous Peoples’ preferences fordirect or indirect interaction, negotiation, debate,dialogue, and application of indigenous traditionalmanagement and/or ceremony, with external agents toensure mutually acceptable processes and outcomes.Where a company is dealing with more than oneindigenous group, there may well be multiple culturallyappropriate methods for dealing with problems bydifferent interests.Given the often marked differences between corporateand indigenous cultures, it is highly desirable to utilizeprocesses that focus on dialogue, buildingcross-cultural understanding and through this findingmutually agreeable solutions. Such approaches aremore equitable and, on a practical level, are more likelyto facilitate viable, long-term resolution of communityissues and concerns.Companies should be aware that how people view anddeal with conflict may vary according to factors such asgender, age and status within the organizational orsocial system. Women from indigenous communities,for example, may have very different ways ofunderstanding and dealing with conflict than men in agiven community. Often, women in particularindigenous communities play an important role indispute resolution, community building and peaceprocesses, but there is a risk that their role can beoverlooked or downplayed by some company processes.23IFC 2009 Addressing Grievances from Project-Affected Communities. IFC: Washington DC.Good Practice Guide Indigenous Peoples and Mining102

6 dealing with grievancesUnderstanding internal community conflictIndustry may sometimes face significant challengesrelated to pre-existing tension of divisions within acommunity or between indigenous groups. Thesemay not have been caused by, or related to themining project. However, companies may exacerbatethese divisions, even if unintentionally; for example,by favouring one group over another, or triggering aconflict over the sharing of benefits. A lack ofknowledge about pre-existing conflict dynamicswithin the community can add considerable risk for acompany in securing and maintaining a social licenceto operate.It is important that the company attempts tounderstand the dynamics of internal communityconflict. Through understanding, and by adopting aninclusive approach to engagement, a company mayavoid further inflaming community tensions. In somecircumstances, it may even be able to play a positiverole by helping to resolve fractious situations.One of the keys to handling these issues well is agood understanding of cultural dynamics, leadershipand decision-making structures, and an approachthat accommodates community differences.6.4.3 CommunicationIn order for a complaints mechanism to be effective,people who are affected by the mine operation need toknow about the mechanism and understand how itworks. By communicating openly, a companydemonstrates its willingness to take communityconcerns seriously and its commitment to maintainingpositive and collaborative relationships. InvolvingIndigenous Peoples in the development of themechanism is one of the best ways of ensuring thatthey are aware of the mechanism and understand howit works. It is also likely to ensure that the mechanismworks as efficiently as it can.6.4.4 Ensuring accessAll sections of the community, including those with lowlevels of literacy, should be able to access themechanism easily. Operations can facilitate access bymaintaining and publicizing multiple access points tocomplaint mechanisms, such as at the project site andin key locations within communities, includingdownstream and remote communities. Communitiesshould also be provided with a variety of options forcommunicating issues and concerns, including inwriting, orally, by telephone, over the internet orthrough more informal methods. In the case ofmarginalized groups (such as women and youngpeople), a more proactive approach may be needed toensure that their concerns have been identified andarticulated. This could be done, for example, byproviding for an independent person to meetperiodically with such groups and to act as anintermediary between them and the company. Where athird party mechanism is part of the proceduralapproach to handling complaints, one option could beto include women or youth as representatives on thebody that deals with grievances. It should be madeclear that access to the mechanism is withoutprejudice to the complainant’s right to legal recourse.6.4.5 Documenting and recordingDocumentation of complaints and grievances isimportant, including those that are communicatedinformally and orally. These should be logged,assessed, assigned to an individual for management,tracked and closed out or “signed off” when resolved,ideally with the complainant(s) being consulted, whereappropriate, and informed of the resolution. Recordsprovide a way of understanding patterns and trends incomplaints, disputes and grievances over time. Whiletransparency should be maintained – for example,through regular reports on issues raised and rates ofresolution – provision should also be made forconfidentiality of information or anonymity of thecomplainant(s) whenever necessary.103 Good Practice Guide Indigenous Peoples and Mining

66.4.6 Responding to complaintsOnce parties agree on a path forward – such as anapology, compensation or an adjustment tooperations – an action plan should be formalized andimplemented. Depending on the issue, responsesmay vary from a single task to a program of workthat involves different parts of the operation. Effectiveresponses will also include engagement with partiesinvolved to ensure that the response continues to beappropriate and understood. Communities shouldalso be advised of the close-out of the issue andwhat has been done to achieve it. This feedbackprovides an opportunity for the company todemonstrate that it has addressed the issue as wellas confirming that the community considers theresponse satisfactory and the matter closed.6.4.7 Understanding root causesAs outlined above, there are many factors that canpotentially lead to conflict or disagreement betweenmining companies and communities, both indigenousand non-indigenous. Although it is not alwayspossible to identify root causes, some issues willwarrant deeper analysis in order to betterunderstand the issue and avoid its further escalation.Many companies have well-establishedmethodologies for root cause and problem analysisfor environmental and safety incidents. In theabsence of a tailored methodology for analysingcommunity-related disputes and grievances, thesemethods may be adapted to guide this analysis.Providing funding and support for community-basedresearch to highlight the indigenous community’sperspective could also provide a deeperunderstanding of the causes of conflict.6.4.8 Monitoring and reportingIt is important to collect data on communityinteractions – from low-level concerns andcomplaints to ongoing disputes and higher-ordergrievances – so that patterns can be identified andmanagement alerted to high-risk issues. Effectivemonitoring may also help to prevent the escalation oflower-level disputes into more serious conflicts.Information can be gathered through variouschannels, such as formal review, evaluation andanalysis or through day-to-day interaction withIndigenous Peoples. Monitoring can help determinethe effectiveness of processes for responding tocommunity concerns; for example, by trackingcomplaint resolution rates over time. Thisinformation can then be used to refine the systemand improve the outcomes being achieved. Theoutcomes of monitoring should be reported formallyto the community on a regular basis, in addition tobeing used for internal management purposes.6.5 Involving other parties6.5.1 Enabling recourse to othermechanismsIn situations where the local-level resolution ofdisputes or grievances proves to be intractable,companies and communities may considerestablishing a formal relationship with anindependent third party mechanism to provide apathway for recourse beyond the local level.In some cases, the factors that lead to disagreementor conflict may not be within the direct control ofcompanies; for example, there may be long-standing,deep-rooted divisions within or between indigenouscommunties that make it impossible to getcommunity consensus on a way forward. However,experience has shown that inappropriate companyculture, policies, systems and practices are often keycontributing factors to poor relations betweencompanies and communities. Involving a mutuallyacceptable third party may sometimes assist inresolving company/community disputes and conflicts.Depending on the context, an external party couldplay a role such as by facilitating or mediatingdiscussion, acting as an arbitrator or providingspecialist advice to conflicting parties.Good Practice Guide Indigenous Peoples and Mining104

6 dealing with grievancesWhatever the role of the third party, involvementshould aim to level the playing field between partiesand facilitate reaching an outcome that is mutuallybeneficial. While more of an adhoc rather than asystematized approach to handling grievances, theCerrejon Coal case study below provides an exampleof an independently facilitated process that had asuccessful outcome.Independently facilitated process toresolve long-standing disputeAn independent review was commissioned in 2007by Cerrejón’s shareholders (Anglo American, BHPBilliton and Xstrata Coal) to assess Cerrejón's socialengagement. The review panel consisted of a teamof research and NGOs from a variety of countries.The panel undertook extensive engagement withlocal communities as well as internationalstakeholders.The central recommendation made by the panel inits February 2008 report was for the company tomeet with the community of Tabaco in order todiscuss outstanding problems relating to therelocation of Tabaco residents in 2001, whichinvolved the expropriation by the Colombian state ofsome Tabaco families who refused to sell theirproperty to the former owners of Cerrejón. Thetown was later demolished in order to make way forthe mine. This led, among other problems, todivisions in the Tabaco community and tensionsbetween Cerrejón and its neighbours.In April 2008, the company publicly committed tomeet with the Tabaco Relocation Committee (TRC)in order to resolve the outstanding problems. Thechair of the independent panel agreed to facilitate aseries of dialogues between the company and theTRC. These meetings took place between Augustand December. As a result, the company agreed tobuying land in order to enable the reconstruction ofthe town of Tabaco and to funding projects topromote the cultural and economic sustainability ofthe town.Sources: Cerrejon Coal and Social Responsibility: An Independent Reviewof Impacts and Intent’, February 2008; Cerrejon Coal press release, 12thDecember 2008; agreement and settlement between the community ofTabaco and Carbones del Cerrejon Ltd.In some cases indigenous communities may wish to berepresented in such a process by another party, so it isimportant that companies remain open to the involvementof NGOs, inter community committees and so forth. At alltimes it is essential that the involvement of a third party betrusted by both the community and the company. The useof third parties can raise complex issues of representation,voice and equity, but if it is done properly may assistcommunities and companies in improving communications,bridging differences and identifying mutually acceptableoutcomes.6.5.2 The role of government inresolving grievancesA much better outcome for all parties can be achieved ifgovernments play a positive role in addressing communitygrievances, complaints and concerns. This may be possibleif the government is empathetic to the situation ofIndigenous Peoples and/or obliged to protect their rightsunder the national legislative frameworks and/or underinternational human rights law. The ICMM PositionStatement on Mining and Indigenous Peoples recognizesthe important role that governments can potentially play.ICMM Position Statement, Commitment 5: Encouraginggovernments where appropriate to participate inalleviating and resolving any problems or issues facedby Indigenous Peoples near mining operations.Before seeking the involvement of government, it is criticalfor a company to establish a clear understanding of therelationship between Indigenous Peoples and theirgovernment. For example, with issues such as claims toland and resource, government support, or lack thereof, forthese claims should be considered (including their supportfor international conventions such as ILO Convention 169 orthe UN Declaration on the Rights of Indigenous Peoples).Companies should also bear in mind levels of self-interest,corruption, favouritism and racial discrimination as well asany negative legacy concerning the historical relationshipbetween the government and Indigenous Peoples.In some circumstances, despite what companies considerto be their best efforts, communities will seek remedythrough the judicial system, in situations where theseremedies are available. Ideally, companies andcommunities would find alternative pathways to remedybefore legal avenues are pursued.105 Good Practice Guide Indigenous Peoples and Mining

7conclusionICMM encourages companies in the mining andmetals industry to establish meaningfulrelationships with any Indigenous Peoples affectedby their work. ICMM considers that developing suchrelationships with Indigenous Peoples based onmutual respect can be beneficial both forcompanies in the mining and metals industries andthe communities they work in and with.It is important that companies take the time toproperly understand the communities they workwith including their particular context, concerns andaspirations. ICMM's aim in preparing this Guide isto assist companies in establishing mutuallybeneficial and meaningful, effective relationshipswith the Indigenous Peoples their work impacts.The Guide is not intended as a one-size-fits-allapproach to developing relations with localcommunities, but instead is designed to provideuseful information and direction for both companiesand indigenous communities when consideringissues around engagement and participation,agreements, impact management, benefits sharingand dealing with grievances. This Guide will formpart of ICMM’s ongoing engagement on theseissues and will be reviewed in light of practicalexperience.ICMM recognizes that each mining project is asunique in its challenges as the local communities itaffects. Accordingly, it is important to ensure thatguidance can be locally adapted for use by miningcompanies in developing mutually beneficialrelationships with local communities.“Nobody owns the land. We said we’dwatch over it, because that’s ourresponsibility. You take care of theland, and it takes care of you.”Virginia PooleSeminole/MiccosukeeGood Practice Guide Indigenous Peoples and Mining106

Appendix a: ICMM position statement onMining and indigenous peoples – May, 2008All ICMM member companies commit to implement and measure their performanceagainst a set of 10 sustainable development principles. Where members have soughtgreater clarity on some of the key challenges facing the industry, ICMM has developedsupporting position statements.OverviewICMM’s vision is for constructive relationships betweenthe mining and metals industry and Indigenous Peopleswhich are based on respect, meaningful engagement andmutual benefit, and which have particular regard for thespecific and historical situation of Indigenous Peoples.With this statement, ICMM members are making explicitnumber of their commitments in this area including to:• respect the rights and interests of Indigenous Peoplesas defined within applicable national and internationallaws• clearly identify and fully understand the interests andperspectives of Indigenous Peoples when seeking todevelop or operate mining/metals projects• engage with potentially affected Indigenous Peoplesduring all stages of new development projects/miningactivities• seek agreement with Indigenous Peoples, based onthe principle of mutual benefit, on programs togenerate net benefits (social, economic, environmentaland cultural) for affected indigenous communities• develop good practice guidance to support members inimplementing the position statement• participate in national and international forums onIndigenous Peoples issues, including those dealingwith the concept of free, prior and informed consent.Background on ICMM principlesand position statementsAll ICMM member companies are required toimplement the ICMM Sustainable DevelopmentFramework. This includes commitments toimplement 10 principles throughout their businesses,to report in line with the Global Reporting Initiative’s(GRI) Sustainability Reporting Guidelines and Miningand Metals Sector Supplement, and to obtainindependent external assurance that the ICMMcommitments are being met (this framework isdescribed in detail on www.icmm.com). ICMMprinciples of particular relevance to IndigenousPeoples are:• Principle 3: Uphold fundamental human rightsand respect cultures, customs and values indealings with employees and others who areaffected by our activities• Principle 6: Seek continual improvement of ourenvironmental performance• Principle 9: Contribute to the social, economicand institutional development of the communitiesin which we operate.In accordance with the principles, ICMM has alsodeveloped a number of position statements thatfurther elaborate member commitments toparticular issues. Company members are obliged tocomply with these statements by incorporating theminto their operational practices.This position statement sets out ICMM members’approach regarding relations with IndigenousPeoples. It has been developed based on feedbackreceived from a range of stakeholder groups to anearlier draft of the position statement.Individual ICMM position statementsare available at www.icmm.com107 Good Practice Guide Indigenous Peoples and Mining

Recognition statementsICMM members recognize:1 Indigenous Peoples in many regions of the worldhave been historically disadvantaged and may oftenstill experience discrimination, high levels of poverty,and other forms of political and social disadvantage.Some governments in the past, and sometimes stilltoday, have not recognized their distinct identity,legitimate interests and, perhaps, their rights asarticulated in relevant international conventions.Conversely, governments sometimes may haveconcerns that rights or autonomy demanded byIndigenous Peoples should not conflict with nationaldevelopment priorities or the integrity of the state andany possible inconsistencies need to be properlyconsidered. A range of international instruments existin this area including ILO Convention 169 on Indigenousand Tribal Peoples and the UN Declaration on theRights of Indigenous Peoples. By 2006, 17 states hadratified ILO Convention 169. In September 2007, thenon- binding UN Declaration on the Rights ofIndigenous Peoples was adopted at the United NationsGeneral Assembly 12 mining can have significant impacts on localcommunities. While these impacts can be bothpositive and negative, many Indigenous Peoples viewtheir historical experiences of mining negatively. Insome cases, mining operations – even though abidingby relevant national laws – have contributed to theerosion of Indigenous Peoples’ culture, to restrictedaccess to some parts of their territory, toenvironmental and health concerns, and to adverseimpacts on traditional livelihoods. The developmentaspirations of Indigenous communities have also notalways been met. Equally, mining has also broughtsome positive impacts to indigenous communities,particularly in recent years. These include incomegeneration, opportunities for equity participation,support for cultural heritage and assistance forcommunity development through education,training, employment and business enterprises3 Indigenous Peoples often have profound and specialconnections to, and identification with, land andenvironment and these are tied to their physical,spiritual, cultural and economic well-being. They canalso have valuable traditional knowledge andexperience in managing the environment in asustainable manner4 the interests of Indigenous Peoples in mining andmetals projects are generally recognized to be oneor more of the following: owners of formal title toland or recognised legal interests in land orresources; claimants for ownership of land orresources; customary owners of land or resourcesbut without formal legal recognition of customaryownership; occupants or users of land either ascustomary owners or as people whose customaryland are elsewhere; in material objects orresources of cultural significance; in landscapeswhich have special significance because ofassociation, tradition or beliefs; members of hostcommunities whose social, economic and physicalenvironment may be affected by mining andassociated activities5 ICMM members believe that successful mining andmetals projects require the broad support of thecommunities in which they operate, including ofIndigenous Peoples, from exploration through toclosure. Interactions between mining and metalsindustry representatives and Indigenous Peoplesshould occur in the context of broader communityengagement but at the same time, giving specialattention to the particular capacities, priorities andinterests of Indigenous Peoples6 governments play vital roles in shaping anddetermining the enabling environment withinwhich mining and metals projects can make avaluable contribution to the sustainabledevelopment of communities, including IndigenousPeoples. Legal frameworks should preferably bedeveloped in consultation with Indigenous Peoplesand allow for processes which allow them toparticipate effectively. Where existing national orprovincial law deals with Indigenous Peoplesissues, the provisions of such laws will prevail overthe content of this Position Statement to the extentof any inconsistencies. Where no relevantlaw exists the Position Statement will guidemember practices. ICMM members are notpolitical decision-makers and cannot disregardnational laws or national government policy.Equally, some national legal frameworks may beno more than a minimum requirement forcompanies seeking to build relationships ofrespect and trust with Indigenous Peoples.Companies may also sometimes legitimatelypoint out in discussions with governments anygaps in implementation of internationalconventions which they have agreed to and ratified.1In September 2007, the non-binding UN Declaration on the Rights of Indigenous Peoples was adopted at the United Nations GeneralAssembly, with 143 member states voting in favour (but with a significant number of these countries heavily qualifying their support on thebasis of, for example, concerns about potential impacts on their ability to govern effectively), 11 abstaining, and 4 voting against it. Since itsadoption, two of the four countries that voted against have reversed their positions and now endorse the Declaration. A third has signalledthat it will take steps to endorse the Declaration and the fourth has indicated that it will also review its position.Good Practice Guide Indigenous Peoples and Mining108

Appendix a: ICMM position statement onMining and indigenous peoples – May, 2008CommitmentsIn addition to existing commitments under the ICMMSustainable Development Framework, ICMMcompany members commit to:1 acknowledge and respect the social, economic,environmental and cultural interests of IndigenousPeoples and their rights as articulated and definedwithin provincial, national and international laws2 clearly identify and fully understand the interestsand perspectives of Indigenous Peoplesregarding a project and its potential impacts. Socialimpact assessments or other social baselineanalyses for projects which may impact onIndigenous Peoples will examine their particularperspectives and be based on consultation with them3 engage and consult with Indigenous Peoples in afair, timely and culturally appropriate waythroughout the project cycle. Engagement will bebased on honest and open provision ofinformation, and in a form that is accessible toIndigenous Peoples. Engagement will begin at theearliest possible stage of potential mining activities,prior to substantive on-the-groundexploration. Engagement, wherever possible, will beundertaken through traditional authoritieswithin communities and with respect for traditionaldecision-making structures and processes4 build cross-cultural understanding: for companypersonnel to understand Indigenous Peoples’culture, values and aspirations, and for IndigenousPeoples to understand a company’s principles,objectives, operations and practices5 encourage governments where appropriate toparticipate in alleviating and resolving any problemsor issues faced by Indigenous Peoples near miningoperations6 design projects to avoid potentially significantadverse impacts of mining and related activities andwhere this is not practicable, minimizing, managingand/or compensating fairly for impacts.Among other things, for example, specialarrangements may need to be made to protectcultural property or sites of religious significance forIndigenous People7 seek agreement with Indigenous Peoples and otheraffected communities on programs togenerate net benefits (social, economic, environmentaland cultural), that is benefits andopportunities which outweigh negative impacts frommining activities. Specific consideration willbe given to customary land and resource use insituations where formal title may be unclear orwhere claims are unresolved. ICMM members willmeasure progress to ascertain that specifiedsocial benefits are being achieved and if programs arenot achieving stated goals, seek agreedmodifications to improve program effectiveness. Ingeneral, ICMM members will seek to buildlong-term partnerships with Indigenous Peoples, tofind ways to increase their participation asemployees and suppliers, and to support selfempoweredregional and community developmentsuch as through education, training, healthcare, andbusiness enterprise support8 support appropriate frameworks for facilitation,mediation and dispute resolution. ICMM members mayassist with or facilitate basic capacity building forIndigenous Peoples organizations neartheir operations. In general, Indigenous Peoples aswell as communities as a whole will beprovided with a clear channel of communication withcompany managers if they have complaintsabout a mining operation and transparent processesthrough which to pursue concerns9 through implementation of all of the precedingactions, seek broad community support for newprojects or activities. ICMM members recognize that,following consultation with local people andrelevant authorities, a decision may sometimes bemade not to proceed with developments orexploration even if this is legally permitted.Future ICMM workICMM commits to moving forward in continuedconsultation with Indigenous Peoples and theirrepresentatives and will continue to developapproaches relating to the interests and concerns ofIndigenous Peoples. Among the elements of workcurrently planned or anticipated for the next few yearsare:• the development of good practice guidance tosupport members in implementing this positionstatement, ideally developed in consultation withIndigenous Peoples• the promotion of good practice more broadly acrossthe mining and metals sector• continued dialogue with Indigenous Peoples’organizations and governments at the local, nationaland international levels.109 Good Practice Guide Indigenous Peoples and Mining

Appendix b: AcronymsACRONYMSCAOEIRFPICIBAICMMIFCILOILUANGOSIAUNUNDRIPCompliance Advisor OmbudsmanExtractive Industries ReviewFree, Prior and Informed ConsentImpact and Benefit AgreementInternational Council on Mining and MetalsInternational Finance CorporationInternational Labour OrganizationIndigenous Land Use Agreementnon-governmental organizationSocial Impact AssessmentUnited NationsUnited Nations Declaration on the Rights of Indigenous PeoplesGood Practice Guide Indigenous Peoples and Mining110

Appendix C: further resourcesA number of resources have been highlighted in this Guide. A listing of theseresources and additional useful references is included here.GENERAL READING – INDIGENOUS PEOPLES AND MININGACIL Consulting and Indigenous Support Services. 2001. Agreements Between Mining Companies andIndigenous Communities. A report to the Australian Minerals and Energy Environment Foundation.Melbourne: AMEEF.www.icmm.com/document/1131Altman, J. and Martin, D. 2009. Power, Culture, Economy: Indigenous Australians and Mining. ResearchMonograph No. 30, CAEPR. Canberra: Australian National Universityepress.anu.edu.au/caepr_series/no_30/pdf_instructions.htmlAnderson, G. and Moramoro, M. 2002. Papua New Guinea Mining Industry – Meeting the Challenges.Paper presentation for PDAC International Convention, March 2002.www.pdac.ca/pdac/publications/papers/2002/T-23.pdfCanadian Aboriginal Minerals Association. 2004. Information on Mining for the Aboriginal Community.Workshop presentation, World Mines Ministries Forum, Toronto, Canada, March 2004.Danida. 2004. Best Practices for Including Indigenous Peoples in Sector Programme Support Tool Kit.Royal Danish Ministry of Foreign Affairs (Danida).Danielson, L. et al. 2002. Finding Common Ground: Indigenous Peoples and Their Association with theMining Sector. London: International Institute for Environment and Development and World BusinessCouncil for Sustainable Development.Downing T. E., Moles, J., McIntosh, I. and Garcia-Downing, C. 2002. Indigenous Peoples and MiningEncounters: Strategies and Tactics, Mining, Minerals and Sustainable Development Project. London:International Institute for Environment and Development (IIED).ICME. 1999. Mining and Indigenous Peoples: Case Studies. Ottawa, Ontario: International Council onMetals and the Environment (ICME).Langton. M. et al. 2006. Settling with Indigenous People. Sydney: Federation Press.Larsen, P. B. 2003. Mining and Indigenous Peoples: A Brief Assessment from IUCN’s Social PolicyPerspective. Gland, Switzerland: IUCN.Mining, Minerals and Sustainable Development. 2002. Breaking New Ground: The Report of the Mining,Minerals and Sustainable Development Project. London: Earthscan.O'Faircheallaigh, C. and Ali, S. (eds.). 2008. Earth Matters: Indigenous Peoples, the Extractive Industriesand Corporate Social Responsibility. Sheffield: Greenleaf Publishing.Orellana, M. A. 2002. Indigenous Peoples, Mining, and International Law. Mining, Minerals andSustainable Development Project. : London: International Institute for Environment and Development(IIED).Render, J. 2004. Mining and Indigenous Peoples Issues Review, London: International Council on Miningand Metals.Trebeck, K. 2003. Corporate Social Responsibility, Indigenous Australians and Mining.The Australian Chief Executive, Committee for Economic Development of Australia, Melbourne.111 Good Practice Guide Indigenous Peoples and Mining

United Nations Development Group. 2008. Guidelines on Indigenous Peoples' Issues. New York: UnitedNations.Warden-Fernandez, J. 2001. Indigenous Communities and Mineral Development. Mining, Minerals andSustainable Development Project. London: International Institute for Environment and Development (IIED).Secretariat of the United Nations Permanent Forum on Indigenous Issues. 2006. Backgrounder onIndigenous Peoples – Lands, Territories and Resources. Prepared for the sixth session of the UNPFII.www.un.org/esa/socdev/unpfii/documents/6_session_factsheet1.pdfIDENTIFYING INDIGENOUS PEOPLESAsian Development Bank. 1998. The Bank’s Policy on Indigenous Peoples – Definition of IndigenousPeoples. www.adb.org/IndigenousPeoples/faq-01.aspCobo, J. M. 1981. Study on the Problem of Discrimination Against Indigenous Populations, Volume 1. UNdocument E/CN.4/Sub.2/476; successive volumes E/CN.4/Sub.2/1986/7 and Add.1-4.Secretariat of the Permanent Forum on Indigenous Issues. 2004. Workshop on Data Collection andDisaggregation for Indigenous Peoples. New York: United Nationswww.un.org/esa/socdev/unpfii/documents/www.un.org/esa/socdev/unpfii/documents/workshop_data_ilo.docILO Convention No. 169. www.ilo.org/public/english/region/ampro/mdtsanjose/indigenous/derecho.htmInter-American Development Bank. 2006. Operational Policy on Indigenous Peoples (OP 765), Strategy forIndigenous Development. www.iadb.org/sds/IND/site_401_e.htmINTERNATIONAL RIGHTS FOR INDIGENOUS PEOPLESAnaya, S. J. and Grossman, C. 2002. “The Case of Awas Tingni v. Nicaragua: A New Step in theInternational Law of Indigenous Peoples”. Arizona Journal of International and Comparative Law, 19 (1).Colchester, M. et al. 2001. A Survey of Indigenous Land Tenure. Moreton-in-Marsh, UK: Forest PeoplesProgramme. forestpeoples.gn.apc.org/briefings.htmDaes, E. I. 2001. Indigenous Peoples and Their Relationship to Land (Final Working Paper). UN documentE/CN.4/Sub.2/2001/21.http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G01/141/79/PDF/G0114179.pdf?OpenElementDaes, E. I. 2003. Indigenous Peoples’ Permanent Sovereignty over Natural Resources (Preliminary Report).UN document E/CN.4/Sub.2/2003/20.http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G03/151/76/PDF/G0315176.pdf?OpenElementForest Peoples Programme, and Tebtebba Foundation. 2006. Indigenous Peoples’ Rights, ExtractiveIndustries and Transnational and Other Business Enterprises. A submission to the Special Representativeof the Secretary-General on human rights and transnational corporations and other business enterprises.Forest Peoples Programme and Tebtebba Foundation.Griffiths, T. 2003. A Failure of Accountability. Indigenous Peoples, Human Rights and Development AgencyStandards: A Reference Tool and Comparative Review. Forest Peoples Programme.Jonas, B. and Donaldson, M. 2003. Human Rights Based Approach to Mining on Aboriginal Land.www.hreoc.gov.au/social_justice/publications/corporateresponsibility/hr_approach.htmlGood Practice Guide Indigenous Peoples and Mining112

Appendix c: further resourcesCONVENTIONSAmerican Convention on Human Rights. 1978. Organization of American States (OAS). Treaty Series No.36, 1144.Convention on Biological Diversity. 1992. United Nations Environment Programme (UNEP). www.biodiv.orgConvention on the Elimination of All Forms of Racial Discrimination.1969. Office of the High Commissioneron Human Rights (UNHCHR). www2.ohchr.org/english/law/cerd.htmInternational Labour Organization Convention 169: Concerning Indigenous and Tribal Peoples inIndependent Countries. 1991. International Labour Organization (ILO).www2.ohchr.org/english/law/indigenous.htmUnited Nations Draft Declaration on the Rights of Indigenous Peoples, E/CN.4/Sub.2/1994/2/Add.1. 1994.United Nations. www1.umn.edu/humanrts/instree/declra.htmUnited Nations General Assembly Resolution 1803 (XVII) of 14 December. 1962. Permanent Sovereigntyover Natural Resources. United Nations. www2.ohchr.org/english/law/resources.htmUniversal Declaration of Human Rights. 1948. United Nations. www.un.org/Overview/rights.htmlVoluntary Principles on Security and Human Rights. 2000. www.voluntaryprinciples.orgNATIONAL LEGISLATION IMPACTING INDIGENOUS PEOPLES“Australia, Aboriginal Land Rights (Northern Territory) Act, 1976”.www.austlii.edu.au/au/legis/cth/consol_act/alrta1976444/Australia, Native Title Act, 1993. www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/Canada, Indian Act, 1985. www.laws.justice.gc.ca/en/I-5/Indigenous Peoples and the Law. 2008. Indigenous Peoples and the Law: an online institute of lawaffecting Indigenous Peoples, Victoria University of Wellington, 1999. www.kennett.co.nz/law/indigenous/Latin America and the Caribbean, databank on indigenous legislation (in Spanish).www.iadb.org/sds/IND/site_3152_e.htmNew Zealand, Crown Minerals Amendment Act, 1997.www.legislation.govt.nz/act/public/1997/0082/latest/whole.htmlNew Zealand, Treaty of Waitangi, 1840. www.treatyofwaitangi.govt.nz/Philippines, Indigenous Peoples Rights Act, 1997. www.grain.org/brl/philippinesipra-1999.cfmPlant, R. and Hvalkof, S., 2001. Land Titling and Indigenous Peoples. Washington, DC: Inter-AmericanDevelopment Bank. www.iadb.orgUnited States (various legislation), Department of the Interior.http://library.doi.gov/index.html113 Good Practice Guide Indigenous Peoples and Mining

ENGAGEMENTDepartment of Industry, Tourism and Resources. 2006. “Community Engagement and Development”, inLeading Practice Sustainable Development Program for the Mining Industry. Canberra: Department ofIndustry, Tourism and Resources (DITR).Emery, A. 2000. Integrating Indigenous Knowledge in Project Planning and Implementation. A partnershippublication: International Labour Organization, World Bank, Canadian International Development Agencyand KIVU Nature. http://go.worldbank.org/LRATV3CBS0Harvey, B. and Brereton, D. 2005. Emerging Models of Community Engagement in the Australian MineralsIndustry. Paper presented at the International Conference on Engaging Communities. August 2005,Brisbane. http://www.csrm.uq.edu.au/docs/ICEC.pdfInternational Alert. 2005. Conflict-Sensitive Business Practice: Guidance for Extractive Industries.International Finance Corporation. 2010. Stakeholder Engagement: A Good Practice Guide Handbook forCompanies Doing Business in Emerging Markets. Washington, D.C.: International Finance Corporation(IFC).www.ifc.org/ifcext/sustainability.nsf/Content/Publications_Handbook_CommunityInvestmentInternational Finance Corporation. 2010. Projects and People: A Handbook for Addressing Project-InducedIn-Migration. www.ifc.org/ifcext/sustainability.nsf/Content/Publications_Handbook_InmigrationInternational Fund for Agricultural Development. 2004. Enhancing the Role of Indigenous Women inSustainable Development. Rome/New York: IFAD.International Fund for Agricultural Development. 2005. Integrating Indigenous Peoples’ Perspectives onDevelopment to Reach the Millennium Development Goals.www.un.org/esa/socdev/unpfii/.../workshop_IPPMDG_deluna_en.docITK and NRI. 2007. Negotiating Research Relationships with Inuit Communities: A Guide for Researchers.Scot Nickels, Jamal Shirley and Gita Laidler (eds). Inuit Tapiriit Kanatami and Nunavut Research Institute.www.itk.ca/sites/default/files/Negotitiating-Research-Relationships-Researchers-Guide.pdfOxfam International. 2007. Corporate Social Responsibility in the Mining Sector in Peru.PDAC. 2008. Principles and Performance Guidelines for Responsible Minerals Exploration, Draft v10.1.Prospectors and Developers Association of Canada (PDAC).Walsh, F. and Mitchell, P. 2002. Planning for Country: Cross-Cultural Approaches to Decision-Making onAboriginal Lands. Alice Springs: IAD Press.Weitzner, V. 2002. Through Indigenous Eyes: Toward Appropriate Decision-Making Processes RegardingMining On or Near Ancestral Lands. Ottawa: North-South Institute. www.nsi-ins.caWhiteman, G. and Mamen, K. 2002. Meaningful Consultation and Participation in the Mining Sector? AReview of the Consultation and Participation of Indigenous Peoples Within the International Mining Sector.Ottawa: North-South Institute. www.nsi-ins.caWorld Bank and ICMM. 2005. Community Development Toolkit. London: World Bank Group’s Oil, Gas, andMining Policy Division and the International Council on Mining and Metals (ICMM).Good Practice Guide Indigenous Peoples and Mining114

Appendix c: further resourcesFREE, PRIOR AND INFORMED CONSENTBass, S. et al. 2004. Prior Informed Consent and Mining: Promoting the Sustainable Development of LocalCommunities. Washington DC: Environmental Law Institute.www.elistore.org/reports_detail.asp?ID=10965Committee on the Elimination of Racial Discrimination General Recommendation XXIII (51) ConcerningIndigenous Peoples. Adopted at the Committee's 235th meeting, 18 August 1997. UN document.CERD/C/51/Misc.13/Rev.4, http://www.austlii.edu.au/au/journals/AILR/1998/6.htmlExtractive Industries Review. 2003. Striking a Better Balance: The Final Report of the Extractive IndustriesReview. Washington, D.C.; World Bank Group.Forest Peoples Programme. 2004a. In Search of Middle Ground: Indigenous Peoples, CollectiveRepresentation and the Right to Free, Prior and Informed Consent. Marcus Colchester and FergusMacKay. FPIC Working Papers. http://www.forestpeoples.org/documents/law_hr/fpic_ips_aug04_eng.pdfForest Peoples Programme. 2004b. Indigenous Peoples’ Right to Free, Prior and Informed Consent andthe World Bank’s Extractive Industries Review. Fergus MacKay. FPIC Working Papers.http://www.forestpeoples.org/documents/prv_sector/eir/eir_ips_fpic_jun04_eng.pdfForest Peoples Programme. 2007. Making FPIC – Free, Prior and Informed Consent – Work: Challengesand Prospects for Indigenous Peoples. Marcus Colchester and Maurizio Farhan Ferrari. FPIC WorkingPapers. http://www.forestpeoples.org/documents/law_hr/fpic_synthesis_jun07_eng.pdfFree Prior Informed Consent for Indigenous Peoples and Local Communities: A Briefing for World BankExecutive Directors. 14 June, 2004. Briefing materials.www.bicusa.org/bicusa/issues/Indigenous_peoples/index.phpMacintyre, M. n.d. Informed Consent and Mining Projects: Some Problems and a Few Tentative Solutions.www.minerals.csiro.au/sd/Certification/MacintyrePriorInformedConsentandMining.pdfMackay, F. 2004. “Indigenous Peoples’ Right to Free, Prior and Informed Consent and the World Bank’sExtractive Industries Review”. Sustainable Development Law and Policy, 4(2): 43–75.Mehta, L. and Stankovitch, M. 2000. Operationalisation of Free Prior Informed Consent. Contributing paperto the World Commission on Dams. http://www.dams.org/docs/kbase/contrib/soc209.pdfSecretariat of the United Nations Permanent Forum on Indigenous Issues. 2005. Report of theInternational Expert Workshop on Methodologies Regarding Free, Prior and Informed Consent andIndigenous Peoples. UN document E/C.19/2005/3.Stoll, J. A, Barnes, R. and Kippen, E. 2008. Uranium Mining – Information Strategy for AboriginalStakeholders’. Paper presented at the Minerals Council of Australia annual Sustainable Developmentconference. Darwin, 15–19 September 2008.United Nations Economic and Social Council, Commission on Human Rights. 2004. Principle of Free, Priorand Informed Consent of Indigenous Peoples in Relation to Development Affecting Their Lands andNatural Resources that Would Serve as a Framework for the Drafting of a Legal Commentary by theWorking Group on This Concept. Preliminary working paper submitted by Antoanella-Iulia Motoc and theTebtebba Foundation to the Sub-Commission on the Promotion and Protection of Human Rights, WorkingGroup on Indigenous Populations, twenty-second session, 19–23 July 2004.http://www2.ohchr.org/english/issues/Indigenous/docs/wgip22/4.pdf115 Good Practice Guide Indigenous Peoples and Mining

United Nations Economic and Social Council, Commission on Human Rights. 2004. Review ofDevelopments Pertaining to the Promotion and Protection of the Rights of Indigenous Peoples, IncludingTheir Human Rights and Fundamental Freedoms: Indigenous Peoples and Conflict Resolution, Workingpaper submitted by Mr Miguel Alfonso Martínez to the Sub-Commission on the Promotion and Protectionof Human Rights, Working Group on Indigenous Populations, twenty-second session, 19–23 July 2004.www2.ohchr.org/english/issues/Indigenous/docs/wgip22/2.pdfAGREEMENTSFidler, C. 2009. Increasing the Sustainability of a Resource Development: Aboriginal Engagement andNegotiated Agreements. Environment, Development and Sustainability. Published online 16 April 2009.Gibson, G and O’Faircheallaigh, C. 2010. The IBA Community Toolkit: Negotiation and Implementation ofImpact and Benefit Agreements. Toronto: Walter and Duncan Gordon Foundation.www.ibacommunitytoolkit.caHowitt, R. 1997. The Other Side of the Table: Corporate Culture and Negotiating with Resource Companies.Regional Agreements Paper No. 3, Penelope Moore (ed.). Land, Rights, Laws: Issues of Native Title, NativeTitle Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies.http://catalogue.nla.gov.au/Record/1697055?lookfor=the%20other%20side%20of%20the%20table&offset=2&max=257372http://catalogue.nla.gov.au/Record/1697055?lookfor=the%20other%20side%20of%20the%20table&offset=2&max=257372Martínez, M. A. 1999. Study on Treaties, Agreements and Other Constructive Arrangements BetweenStates and Indigenous Populations (Final Report). UN document E/CN.4/Sub.2/1999/20.www.unhchr.ch/huridocda/huridoca.nsf/0/696c51cf6f20b8bc802567c4003793ec?opendocumentO'Faircheallaigh, C. 2008, “Negotiating Protection of the Sacred? Aboriginal-Mining Company Agreementsin Australia”. Development and Change, 39(1); 25–51.O’Faircheallaigh, C. 2007. Reflections on the Sharing of Benefits from Australian Impact BenefitAgreements (IBAs). Based on the Pre-Forum Interview and Forum Presentation at the GordonFoundation's first Northern Policy Forum, Fort Good Hope, Northwest Territories, Canada.http://www.gordonfn.org/resfiles/Forum_IBA%27S_indd.pdfO'Faircheallaigh, C. 2006. “Mining Agreements and Aboriginal Economic Development in Australia andCanada”. Journal of Aboriginal Economic Development, 5 (1); 74–91.O'Faircheallaigh, C. 2004. “Evaluating Agreements between Indigenous Peoples and ResourceDevelopers”, in M. Langton, M. Tehan, L. Palmer and K. Shain (eds.), Honour Among Nations? Treatiesand Agreements with Indigenous People, Melbourne University Press, pp. 303–328.O'Faircheallaigh, C. 2003. Financial Models for Agreements Between Indigenous Peoples and MiningCompanies. Aboriginal Politics and Public Sector Management Research Paper. No.12. Brisbane: GriffithUniversity.www.griffith.edu.au/business/griffith-business-school/pdf/research-paper-2003-financial-models.pdfRenshaw, J. 2001. Social Investment Funds and Indigenous Peoples. Washington, DC: Inter-AmericanDevelopment Bank.www.iadb.orgGood Practice Guide Indigenous Peoples and Mining116

Appendix c: further resourcesMANAGING IMPACTS AND BENEFITS“Mining Indigenous Lands: Can Impacts and Benefits be Reconciled?” Thematic issue, Cultural SurvivalQuarterly, 25(1). www.culturalsurvival.org/Robinson, W. C. 2003. Risks and Rights: The Causes, Consequences, and Challenges of Development-Induced Displacement. Occasional Paper. Washington, DC: Brookings Institute.Secretariat of the United Nations Permanent Forum on Indigenous Issues. 2004. Report of theInternational Expert Workshop on Data Collection and Disaggregation for Indigenous Peoples. UNdocument E/C.19/2004/2.Indigenous and Community Conservation Areas. "Recognising Indigenous and Community Conservation".http://www.iccaregistry.org/BASELINE RESEARCH AND SIAsBirckhead, J. 1999. “Brief encounters: doing rapid ethnography in Aboriginal Australia”, in S. Toussaintand J. Taylor (eds.), Applied Anthropology in Australasia. Nedlands, Western Australia: University ofWestern Australia Press.Larcombe, P. 2000. Determining Significance of Environmental Effects: An Aboriginal Perspective.Hull, Quebec: Canadian Environmental Assessment Agency. http://www.ceaa.gc.ca/015/001/003/1_e.htmO’Faircheallaigh, C. 2009. “Effectiveness in Social Impact Assessment: Aboriginal Peoples and ResourceDevelopment in Australia”. Impact Assessment and Project Appraisal, Beech Tree Publishing, pp. 95–110http://www98.griffith.edu.au/dspace/handle/10072/29909Secretariat of the Convention on Biological Diversity. 2004. Akwé: Kon Voluntary Guidelines for theConduct of Cultural, Environmental and Social Impact Assessments Regarding Developments Proposed toTake Place on, or Which Are Likely to Impact on, Sacred Sites and on Lands and Waters TraditionallyOccupied or Used by Indigenous and Local Communities. CBD Guidelines Series.http://www.cbd.int/doc/publications/akwe-brochure-en.pdfCOMMUNITY DEVELOPMENTDFID. 1999. Sustainable Livelihoods Guidance Sheets. London: Department for International Development(DFID). (http://www.livelihoods.org/info/info_guidanceSheets.html)DITR. 2006. “Community Engagement and Development”, in Leading Practice Sustainable DevelopmentProgram for the Mining Industry. Canberra: Department of Industry, Tourism and Resources (DITR).Meadows, D. 1998. Indicators and Information Systems for Sustainable Development. Vermont: TheSustainability Institute.Prospectors and Developers Association of Canada (PDAC) e3Plus: A Framework for ResponsibleExploration launched by the Prospectors and Developers Association of Canada. www.pdac.ca/e3plus117 Good Practice Guide Indigenous Peoples and Mining

EMPLOYMENTBarker, T. and Brereton, D. 2004. Aboriginal Employment at Century Mine. Research Paper No.3.Brisbane, Australia: Centre for Social Responsibility in Mining, Sustainable Minerals Institute, University ofQueensland. www.csrm.uq.edu.auBrereton, D. and Barker, T. 2005. Survey of Local Aboriginal People Formerly Employed at Century Mine:Identifying Factors that Contribute to Voluntary Turnover. Brisbane, Australia: Centre for SocialResponsibility in Mining, Sustainable Minerals Institute, University of Queensland. www.csrm.uq.edu.auTiplady, T. and Barclay, M. 2006. Indigenous Employment in the Australian Minerals Industry. Brisbane,Australia: Centre for Social Responsibility in Mining, Sustainable Minerals Institute, University ofQueensland. www.csrm.uq.edu.auGRIEVANCES, DISPUTES AND CONFLICT RESOLUTIONAli, S. H. 2003. Mining, the Environment, and Indigenous Development Conflicts. Tuscon: University ofArizona.Compliance Advisor Ombudsman (CAO). 2008. A Guide to Designing and Implementing GrievanceMechanisms for Development Projects. Washington DC: CAO.Hilson, G. 2002. “An Overview of Land Use Conflicts in Mining Communities”. Land Use Policy, 19: 65–73.ICMM. 2009. Handling and Resolving Local Level Concerns and Grievances. London: ICMM.www.icmm.com/page/14809/human-rights-in-the-mining-and-metals-industry-overview-managementapproach-and-issuesIFC. 2009. Addressing Grievances from Project-Affected Communities. Washington DC: IFC.www.ifc.org/ifcext/sustainability.nsf/AttachmentsByTitle/p_GrievanceMechanisms/$FILE/IFC+Grievance+Mechanisms.pdfInternational Alert. 2005. Conflict-Sensitive Business Practice: Guidance for Extractive Industries.London: International AlertMartínez, M. A. 2004. Indigenous Peoples and Conflict Resolution (Working Paper). UN documentE/CN.4/Sub.2/AC.4/2004/2. www.unhchr.ch/Indigenous/documents.htm#srRees, C. 2009. Report of International Roundtable on Conflict Management and Corporate Culture in theMining Industry. Corporate Social Responsibility Initiative Report No. 37. Cambridge, MA: John F. KennedySchool of Government, Harvard University.Ruggie, J. 2008. Protect, Respect and Remedy: A Framework for Business and Human Rights. Report ofthe Special Representative of the Secretary-General on the issue of human rights and transnationalcorporations and other business enterprises, United Nations.Whiteman, G. and Mamen, K. 2002. “Examining Justice and Conflict Between Mining Companies andIndigenous Peoples: Cerro Colorado and the Ngabe-Bugle in Panama”. Journal of Business andManagement, 8 (3): 293.Good Practice Guide Indigenous Peoples and Mining118

acknowledgementsThe development of this guide would nothave been possible without the input andsupport of many individuals andorganizations. ICMM gratefullyacknowledges the following contributions:Indigenous Peoples Advisory GroupAn independent Indigenous Peoples Advisory Groupwas convened to provide constructively criticaladvice on substance and process throughout thedevelopment of the Guide. The Advisory Groupmembers acted in their individual capacity, ratherthan as representatives of their respectiveorganisations. ICMM is indebted to these individualsfor sharing their wisdom and insights throughoutthe process of developing the Guide:Mike Rae,Director of NRPlan (Canada)Cassio Inglez de Souza,Independent Expert on Indigenous Affairs (Brazil)Meg Taylor,Vice President, Compliance Adviser/Ombudsman(CAO) for the International Finance Corporation andthe Multilateral Investment Guarantee Agency(Papua New Guinea/Baiman Tsenglap)Lucy Mulenkei,Indigenous Information Network (Kenya /Maasai)Mick Dodson,Director, National Centre for Indigenous Studies,Australian National University (Australia/Yawuru)ICMM Working GroupThe development of the Guide was overseen by an ICMMWorking Group, chaired by Jo Render (formerly ofNewmont Mining). ICMM is indebted to the members ofthe working group for their engagement on iterative draftswhich led to the final document. The working groupcomprised:Jon Samuel Anglo AmericanPaul Hollesen AngloGold AshantiThando Njoko AngloGold AshantiLaura TylerBHP BillitonIan WoodBHP BillitonCaroline Rossignol BarrickPeter Sinclair BarrickStan BateyFreeport-McMoRan Copper & GoldDina AloiGoldcorpBarnard Mokwena LonminSarah Fuller Minerals Council of AustraliaJulie Gelfand Mining Association of CanadaChris Anderson NewmontHelen MacDonald NewmontAlejandra Maurtua ValeBernarda Elizalde PDACGlynn Cochrane Rio TintoEric Christensen Rio TintoJeffrey Davidson Rio TintoBruce Harvey Rio TintoClaude Perras Rio TintoGillian Davidson TeckPatricia J. Dillon TeckDavid Parker TeckLuana Andrade ValeNatascha Cunha ValePaul JonesXstrataIndigenous representatives/advocacy organisationsThe second draft of the Guide was circulated to over 50representative and advocacy organizations working onindigenous issues for comment, on the understanding thatproviding comments in no way implied endorsement ofthe content. ICMM would like to sincerely thank thoseorganisations that took the time and effort to providecomments. All external comments were discussed in aface-to-face meeting in Vancouver between theIndigenous Advisory Group and the ICMM Working Groupto determine how best to address them.119 Good Practice Guide Indigenous Peoples and Mining

Consulting TeamThe Guide was developed by a consulting teamcomprising specialists from the Centre for SocialResponsibility in Mining (CSRM) of QueenslandUniversity, Australia, and Synergy GlobalConsulting. ICMM is indebted to the team for theirexpert input into the drafting and development ofthe publication:David Brereton, CSRM (Project Leader)Ed O’Keefe, Synergy Global (Project co-leader)Warwick Browne, CSRM (Project Manager)Deanna Kemp, CSRM (Consultant)Kathryn Tomlinson, Synergy Global (Consultant)ICMM TeamAidan Davy and Claire White led the process todevelop this Guide on behalf of the ICMMSecretariat. Fernanda Diez provided support on thecommunications and outreach for the guide. We areindebted to Bob Dick for his creative input to thedesign process.Photo creditsICMM wishes to thank the following photographers,member companies and photographic agencies forthe use of the following images:Photographer Weblink PagesBryan and Cherry Alexander, Arctic Photos www.arcticphoto.co.uk 1, 15, 56, 63/64,Pichugin Dmitry, Birute Vijeikiene, www.shutterstock.com 6, 12, 27/28, 35, 95Eduardo Rivero, ShutterstockAidan Davy, ICMM www.icmm.com 14Anglo American www.angloamerican.com 22Freeport McMoRan www.fcx.com 31, 37Lihir Gold www.lglgold.com/asp/index.asp 39, 70Xstrata www.xstrata.com 41/42Dreamstime images www.dreamstime.com 50Silvia Izquierdo, STR, Associated Press www.apimages.com 52, 101Rio Tinto www.riotinto.com 54Rio Tinto Diamonds www.riotintodiamonds.com 73Newmont Mining www.newmont.com 75Ricardo di Lucia, Brazil Photos www.brazilphotos.com 78Barrick www.barrick.com 90James Rodriguez, independent photographer www.mimundo.org 99and photo journalistDisclaimerThe designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the partof the International Council on Mining and Metals concerning the legal status of any country, territory, city or area or of its authorities, or concerningdelimitation of its frontiers or boundaries. Moreover, the views expressed do not necessarily represent the decision or the stated policy of theInternational Council on Mining and Metals, nor does citing of trade names or commercial processes constitute endorsement.Published by International Council on Mining and Metals (ICMM), London, UK© International Council on Mining and Metals 2010. The ICMM logo is a trade mark of the International Council on Mining and Metals. Registered inthe United Kingdom, Australia and Japan.Design: Duo DesignPrint: DPS Print SolutionsAvailable from: ICMM, www.icmm.com, info@icmm.comThis publication is printed on Edixion Challenger Offset. This paper stock is Forest Stewardship Council (FSC) certified and holds ISO 14001, ISO 9001and ISO 9706 certification.Good Practice Guide Indigenous Peoples and Mining120

ICMMThe International Council on Mining and Metals (ICMM) wasestablished in 2001 to act as a catalyst for performanceimprovement in the mining and metals industry. Today, theorganization brings together 19 mining and metals companiesas well as 30 national and regional mining associations andglobal commodity associations to address the core sustainabledevelopment challenges faced by the industry. Our vision is ofmember companies working together and with others tostrengthen the contribution of mining, minerals and metals tosustainable development.‘Ngapa Jukurrpa’ (Water Dreaming)by Angelina Nampijinpa TasmanThe site depicted in this painting is Pirlinyarnu (Mt. Farewell), about 165km westof Yuenduma in the Northern Territory.Two Jangala men, rainmakers, sang the rain, unleashing a giant storm thatcollided with another storm from Wapurtali. The two storms travelled across thecountry, from Karlipinpa near Kintore. A Kirrkarlanji (brown falcon) carried thestorm further west until it dropped the storm at Pirlinyarnu, forming anenormous Maliri (lake). A ‘mulju’ (soakage) exists in this place today. At Puyurruthe bird dug up a ‘warnayarra’ (rainbow serpent). The serpent carried water withit to create another large lake. Whenever it rains today hundreds of‘ngapangarlpa’ (bush ducks) still flock to Pirlinyarnu.The ‘kirda’ (custodians) for this Jukurrpa are Jangala/Jampijinpa men andNangala/Nampijinpa women.ICMM35/38 Portman SquareLondon W1H 6LRUnited KingdomPhone: +44 (0) 20 7467 5070Fax: +44 (0) 20 7467 5071Email: info@icmm.comwww.icmm.comThe ICMM logo is a trade mark of the International Council on Mining and Metals. Registered in the United Kingdom, Australia and Japan.