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Free, Prior and Informed Consent, or Free, Prior and Informed Approval?

November 4, 2012

The issue of free, prior and informed consent is pre-occupying the mining industry. To the casual, liberal observer this seems like a no-brainer: ensure you have the freely obtained consent of those likely to be affected by your mining operations before you proceed, after making sure they fully understand the consequences of what you propose; altering your plans to take account of their concerns and interests; and being ready to walk away if you can’t obtain their agreement without undermining the viability of your project.

But when you capitalise the phrase – Free, Prior and Informed Consent, or FPIC – it becomes freighted with the politics of the oppressed. Because FPIC (pronounced “effpick”) is jargon for getting a social and political licence to operate from indigenous peoples with rights over mining land.

Drawing on the 2007 UN Declaration on the Rights of Indigenous Peoples and a host of other international documents and agreements, FPIC is the result of years of campaigning by and on behalf of indigenous people all over the world. These are people whose rights have for centuries been marginalised as a result of settler colonisation, and who still too-often need special attention if their voices are to be heard in the maelstrom of competing interests that attends debate around significant mining (and agribusiness) projects. FPIC is an international standard which says that indigenous communities have the right to be fully informed about what is planned, and that their consent to those plans is needed. It is inherently flawed and compromised, since it attempts to solve what are essentially national and local political issues with an international model. Nevertheless, as part of redressing a balance which is way out of whack, this is a necessary compromise, especially in countries where government and governance are inadequate for resolving competing interests fairly, and where the level of trust between government and citizens is low.

Competing interests, competing visions

Indigenous people fear mining projects for all kinds of different reasons specific to their context, and in some cases are implacably opposed. One common reason for their fear is that they have a centuries-old history of being shafted by outsiders and incomers who have more power than they. So there is an understandable mistrust, and often an assumption that any new project represents yet another opportunity to shaft them. Behind that, they calculate the economic, social, political, environmental and cultural opportunity-cost of any new project, and this is something that can be affected and changed through information, argument and negotiation. Not that “indigenous communities” are homogenous of course: like any community they tend to reflect a variety of opinions and perspectives.

Governments likewise reflect different interests. Even where they genuinely reflect the interests of indigenous people, they also need to square these with the interests of other citizens, and of the economy and society as a whole. Good governments regard mining revenue as scarce capital, a once-only opportunity to re-invest the patrimony of the nation in ways which secure a better future, e.g. in infrastructure, in education, in environmental conservation or improved governance; and while they need to take account of the specific interests of indigenous groups, their job is to govern the country as whole, not just special groups within it. No government is infallible; most are very fallible. Indeed, many governments are ill-structured to represent the diverse interests of their people and the nation as a whole, and unfortunately do a much better job of representing their own interests, and those of people closest to them.

Many of the big international mining companies have made great strides in corporate behaviour. They understand the need to mine in a responsible way, taking account of the social, cultural, political and environmental realties, rather than just spreading a few goodies around nearby communities while they get on with digging and removing what they need for sale elsewhere. This is not easy. They are faced with competing interests: shareholders who wish to maximise short-term profit; host governments with a desire to maximise royalties and taxes; some local communities looking for them to provide infrastructure, jobs and other local benefits; other local communities preferring things to remain as they are; regulators and international campaigners pushing for increased transparency; and so on. And all of these interest groups disaggregated into much narrower sub-groups, making up a complex tapestry that is hard to understand. But provided the economics of a particular project allow it, these often competing interests can usually be accommodated where the systems and culture of trust, political openness and compromise exist. The problem is, in all-too-many mining environments, they don’t. Which is where international measures like FPIC are needed, to set a bar which responsible companies and national governments need to meet in terms of their engagement with indigenous communities.

The existence of an official standard – “FPIC” in capital letters as it refers to engagement with indigenous people – should not detract from the need to ensure that as far as possible, all affected people are involved in giving free, prior and informed consent – i.e. “fpic”. Because, ethically speaking, all affected people should have the opportunity to be informed and consulted about any project likely to have a major impact on their lives, through a process of engagement designed to obtain compromise, consensus and consent – and which is designed to allow for almost any possible outcome, including a decision for the project not to go ahead.

Consent implies veto

But this raises the thorny question at the heart of the FPIC (or even the fpic) debate. Does the need to obtain consent imply the possibility of veto? Miners fear FPIC because they fear the power of veto, and especially in contexts over which incompetent, unrepresentative or venal governments preside.

Companies fear losing out on good commercial opportunities where they believe compromise, consensus and mutual consent would be possible, but for the failure of politics. Some of them understandably feel that enshrining the principles of FPIC might make negative outcomes more likely. They also cite ethical and moral concerns. They point out that it’s not always easy to engage fairly with indigenous communities: who speaks for the community, and can we be sure of their legitimacy? Will the power of veto raise the stakes and cause internal, possibly violent conflicts within and between indigenous groups, as well as between them and others? Might FPIC cause more corruption – with indigenous leaders selling their consent under the table – and thus increase inequity. At worst, could it lead to extreme measures, even the repression and murder of those “standing in the way of progress”?

At the core of all this is the very practical issue, that mutual consent can be hard to come by in a zero sum-game political environment lacking in trust –  a fairly accurate description of many situations where indigenous communities and mining projects coincide. Viewed from any angle, if the consent of a particular group of people becomes a sine qua non requirement, that group of people has an effective right of veto. There is no escaping this.

So the concept of “consent” – such a nice, soft word – is really the much more powerful idea of “approval”. From the perspective of indigenous groups, FPIC means that you can only go ahead with your plans if we approve of and authorise them. From the perspective of miners and governments, it means we can only go ahead with our plans if they agree.

The magic crystal

All this is very abstract. The difficulty is that with all mining projects there are genuinely different interests at stake. The conservation of traditional culture and of the natural environment; the need for jobs and local economic development; the need for local and national infrastructure; the need for local and national leaders to retain the support of their constituencies; the need for raw materials; the need of shareholders, and so on: all these and countless other legitimate interests and needs jostling for position. The role of governments, and to some extent of international governance, is to frame these kinds of issues in a helpful way allowing compromise, consensus and consent.

Of course it is easy – especially at an abstract level and from a disinterested viewpoint – to argue that the expressed interests of the affected indigenous community must predominate; that without their consent, freely given and from an informed perspective, no project should proceed. Most minerals can be found elsewhere, and governments can find alternative sources of tax revenue. So in the scheme of things, leaving one particular mineral deposit un-mined doesn’t seem like a tragedy. But to examine the ethics of the issue, it is sometimes instructive to put an extreme case. What if the substance under the ground were a unique magic crystal, with the power to cure cancer, and it only occurred in one place, where a group of indigenous people have lived for centuries and have rights over the land. In such circumstances, would they really retain a power of veto?

From “licence to operate”, to a shared vision of progress

What this extreme instance illustrates, I suggest, is that the task of those engaged in FPIC-inspired, or FPIC-compliant processes, is to change the terms of the dialogue. Historically, the discussion has been about whether this or that mining project is acceptable, or of how to make it acceptable to local communities, i.e. how to obtain the so-called “social licence to operate”. Perhaps instead, the discussion should be about the larger societal questions of progress and conservation, and of whether and how the proposed mining project fits in to a broader strategy for the future. This means that rather than seeing local communities as “stakeholders” in a mining project, all parties including the miners should see themsleves and each other as stakeholders in something much larger.

This is much easier said than done, and it requires three factors above all:

First and foremost it implies the need for individuals in mining companies, in communities and in government need to provide leadership for a changed approach. In all three cases, this means persuading others within their constituency to step outside what’s normal, and stand above the narrow interests of the group.

 A critically important tool for this is dialogue. Do not mistake me: without leadership, dialogue alone can change very little. But combined with risk-taking leadership, the process of dialogue can be transformative, allowing people to see and understand the valid interests of others, helping participants develop a shared sense of purpose, and to behave responsibly.

The powerful combination of leadership and dialogue can be instrumental in producing the commodity which is often so lacking in situations where mining projects are proposed or ongoing: trust. By increasing the level of trust between different actors, those working to resolve difficult issues where mining and indigeneity coincide can not only improve the prospects for a mutually successful outcome – they can also help create a broad political culture more characterised by positive-sum, not zero-sum approaches.

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