Voluntary sustainability initiatives have helped to establish the principle of free, prior and informed consent (FPIC) as an industry norm in resource-development contexts. This has been done through the adoption of FPIC requirements in standards, the publication of extensive guidance, and related public debates. There is much less evidence – as yet – of successful practical application of FPIC.

Reports by Solidaridad, MSI Integrity and others have questioned the extent to which voluntary initiatives can support and promote human rights protection, calling for stronger legal protections, such as the EU human rights due diligence law, expected to be introduced in 2021. In May 2020, Rio Tinto’s destruction of ancient culturally significant caves at Juukan Gorge, Western Australia, demonstrated that even a leading promoter of indigenous rights and voluntary initiatives can fail to respect indigenous rights if the necessary checks and balances are not in place.

I recently produced a report published by ISEAL focusing on the principle of FPIC and its application by voluntary sustainability initiatives. I start from the position that there is a still an important enabling role for voluntary initiatives relating to indigenous and human rights protection. The report explores that role in relation to FPIC implementation, considering how it can be strengthened alongside efforts to increase legal protections.

Is FPIC an indigenous right or just ‘good consultation’?

The principle of FPIC is seen as an important way to promote the protection and respect of indigenous peoples’ rights – including the right to self-determination – in the context of natural resource development. FPIC is also increasingly viewed as a process to minimise risks and enhance opportunities for all vulnerable and resource-dependent communities (whether or not they are indigenous), and thereby mitigate risks to businesses themselves.

It is important to consider these two approaches separately. The application of FPIC beyond indigenous communities should not weaken its role in protecting the rights of indigenous peoples to self-determination, participation, property, culture and non-discrimination, as recognised in international legal instruments.

What are the key challenges in applying FPIC?

The lack of evidence of successful practical application of FPIC is partly because FPIC was adopted quite recently by some voluntary initiatives. It is still poorly understood, and implementation capacities are frequently lacking. FPIC is difficult to verify and often takes place in isolated locations, which are hard to access for third-party monitoring and independent research. Issues also relate to the role of auditors, including conflicts of interest, lack of awareness of indigenous rights, and lack of time, access and funding. Remarkably, FPIC is only an optional requirement in some cases, and priority is sometimes given to environmental requirements in actual auditing situations.

Crucially, it is also almost impossible for companies to implement FPIC adequately if host governments do not protect or recognise indigenous peoples’ rights to self-determination, land or consultation. There is little evidence of voluntary initiatives protecting the rights of indigenous and local communities in such contexts. However, the complaints mechanisms of voluntary initiatives are often used by local communities to address, land rights violations and failures to implement FPIC. In some cases, this represents the only recourse for affected communities.

How can voluntary standards enable effective FPIC implementation?

The role of voluntary sustainability standards in enabling effective FPIC implementation is presented in this report as a set of five key functions: 1) Enhancing legal compliance; 2) Supporting governance risk management; 3) Building awareness, knowledge and capacities; 4) Ensuring fairness and accountability; and 5) Stimulating wider sectoral and governance reform.

Five ‘effectiveness principles’, which draw on the ISEAL Credibility Principles, are essential in order to deliver these functions. Actions need to be: 1) Context-appropriate; 2) Rights-holder inclusive; 3) Measurable; 4) Transparent; and 5) Collaborative.

Specific recommendations include the following:

– Include indigenous peoples in the governance and monitoring of voluntary standard systems (e.g. through an indigenous peoples’ advisory forum, support for independent monitoring and research).

– Require companies to have a due diligence plan for assessing the FPIC governance gap and to proactively engage with governments on indigenous rights and FPIC.

– Review and update the standard system to support FPIC, with an appropriate mission statement, a mandatory (not optional) FPIC requirement, context-specific FPIC guidance, an effective complaints mechanism and reliable evaluation frameworks.

– Build skills, capacities, knowledge and awareness internally, among auditors and stakeholders, and within affected communities.

– Tackle complex issues such as recognising high-risk countries in standard compliance frameworks, and evaluating the FPIC-compatibility of company-community agreements.

Sustainability standard systems are not designed to operate as stand-alone interventions. Effective partnerships are crucial, with governments, NGOs, indigenous and local communities, researchers, donors and inter-governmental organisations – and they are not easy to get right. Voluntary initiatives are urged to review and enhance partnerships and collaboration for more effective support of indigenous rights and FPIC.

Research gaps

Overall, there is a lack of field-based research on FPIC implementation and voluntary sustainability initiatives in all resource sectors, but especially in the mining sector. Key gaps include: 1) reliable evaluation metrics and reporting mechanisms; 2) frameworks for evaluating the FPIC compatibility of community-company agreements; and 3) comparative case study research into FPIC implementation in diverse contexts.

This report is relevant to a range of sectors, but the main aim is to draw insights from existing literature to inform the development of sustainability standards for the mining and minerals sector. It seeks to support voluntary sustainability initiatives to improve the effectiveness of FPIC implementation, so as to safeguard vulnerable and resource-dependent communities and protect and respect indigenous rights. It also contributes to wider efforts to inform sustainability policy and practice with evidence and insight from empirical research.