Anglo American recognises the special rights, status and potential vulnerabilities of Indigenous Peoples. In addition to the human rights enjoyed by all individuals, Indigenous Peoples also enjoy collective indigenous rights, which are defined in international standards, principles and legal instruments and, in many cases, also in national legislation.

Indigenous people number around 370 million globally. They comprise 5% of the world’s population but account for 15% of the extreme poor. While Indigenous Peoples own, occupy, or use a quarter of the world’s surface area, they safeguard 80% of the world’s remaining biodiversity¹. They are often amongst the most marginalised and vulnerable.

Sites are sometimes located close to or on Indigenous Peoples’ lands and may impact on their lives, livelihoods, traditions, and culture. The term ‘indigenous groups’ is used in this section to refer to a sub-set of a ‘people’. In such cases, relations with indigenous groups, which could encompass village communities, sections of communities, traditional resource-use collectives, etc, require particular attention for the following reasons:

• special legal status is afforded to Indigenous Peoples internationally and, in many cases, nationally
• the right for Indigenous Peoples to participate meaningfully in decision-making relating to developments on their lands
• the unique and rich cultural heritage of many Indigenous Peoples, which is protected by international law and, in many cases, national and sub-national legislation
• the valuable traditional knowledge about fauna and flora, landscapes and climate held by many indigenous groups
• the lack of legal recognition of Indigenous Peoples by some national governments
• the inherent vulnerability of some indigenous groups.

International instruments and standards

Indigenous people are protected as individuals by internationally recognised human rights. In addition, international hard and soft (non-binding) law instruments recognise the collective rights of Indigenous Peoples, which include the right to self-determination, culture, religion, non-discrimination, property and the means of subsistence, as well as the right to set and pursue their own priorities for development.

The two main instruments for protecting indigenous rights are the International Labour Organization (ILO) Convention 169 on Indigenous and Tribal Peoples in Independent Countries (ILO C169), which is legally binding in the 23 countries which have ratified it, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). While UNDRIP is not legally binding, an increasing number of countries incorporate its principles into national law.

Box 4I.2 Relevant international instruments

• International Covenant on Economic, Social and Cultural Rights (ICESCR)
• International Covenant on Civil and Political Rights (ICCPR)
• International Convention on the Elimination of All Forms of Racial Discrimination
• International Labour Organization’s (ILO) Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO C169)
• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
• Rio Declaration on Environment and Development
• Convention on Biological Diversity, Nagoya Protocol and Akwe:Kon Guidelines
• Organization of American States (OAS) Declaration on the Rights of Indigenous Peoples.

ILO C169 and UNDRIP define government responsibilities for protecting the rights of Indigenous Peoples within their jurisdictions. In many cases, indigenous rights are protected by national legislation. In some cases, this legislation is poorly implemented and fails to provide adequate protections for indigenous people, particularly in the context of mineral-resource development. For example, sometimes indigenous people are not involved in decision-making related to resource development on their lands and, in other cases, certain indigenous groups are not legally recognised in their own countries, even when they are recognised by the United Nations.

In order to address governance gaps, reduce project and/or site risks and protect the territories, livelihoods and cultures of Indigenous Peoples affected by industrial projects, international good practice standards for respecting indigenous rights have also been developed by international financial institutions, industry associations and other global business initiatives. The guidance that follows is based on these good practice standards.

Anglo American’s Social Way aligns with the IFC Performance Standards. Performance Standard 7 (PS7) is the specific Standard that relates to Indigenous Peoples issues. Also important are PS1 (due diligence) and PS8 (cultural heritage) (see Section 4H). In some cases, other international financial institutions have additional criteria and wording that more fully or clearly address indigenous issues, which are highlighted, where relevant, in this guidance.

As a member of the ICMM, Anglo American has committed to the ICCM’s Sustainable Development Framework and the six commitments in its Position Statement on Indigenous Peoples (see Box 4I.1) and follows the guidance in ICMM’s Good Practice Guide on Indigenous Peoples and Mining. Where appropriate, this guidance highlights certain commitments and requirements of other industry initiatives to understand and minimise potential impacts to indigenous people.

Box 4I.3 Good-faith negotiation

All negotiations with indigenous communities should be conducted in good faith.

Negotiation in good faith is a bilateral (or sometimes multilateral) process, which requires the commitment and participation of each of the parties. Good-faith negotiation requires that all parties respect each other’s decision-making processes and appreciate their constraints. In broad terms, good-faith negotiation involves all parties being willing to:

• Engage in negotiation and meet at reasonable times and frequency
• Provide information needed for informed negotiation and explore key issues of importance
• Agree mutually acceptable procedures for negotiation that include sufficient time for decision-making
• compromise in pursuit of reaching a formal and documented agreement.

Good-faith negotiation strategies are a prerequisite to gaining and sustaining FPIC.

Source: ICMM’s Indigenous Peoples Guidance, Tool

Free, Prior, and Informed Consent

IFC Guidance Note 7 explains that Free Prior and Informed Consent (FPIC) is both a process and an outcome, which builds on the requirements for informed consultation and participation (ICP) and additionally requires good-faith negotiation between the company and Affected Communities of Indigenous Peoples. The outcome, where the good-faith negotiation process is successful, is an agreement on the basis for which a project or site activities should proceed, and evidence of such agreement (see 4I.2 Task 6). FPIC does not necessarily require unanimity and may be achieved even when individuals or groups within the community explicitly disagree.

The FPIC process requires that indigenous communities should be:

• able to freely make decisions without coercion, intimidation or manipulation
• given sufficient time to be involved in decision-making before key decisions are made and impacts occur
• fully informed about proposed site activities or a project and its potential adverse impacts.

The mutually accepted process for FPIC between the site and the affected indigenous communities must be documented in the Community Engagement Plan (see 4I.2 Task 2), and there must be evidence of an FPIC agreement where consent is given (see 4I.2 Task 6). Discrete FPIC processes and/or agreements may be required in relation to different site activities or developments over the Life of Asset (LoA).

Sites are required to facilitate a process of (or, in other words, work to obtain) FPIC with the affected indigenous groups where:

• There are potential adverse impacts (temporary or permanent) on lands and natural resources subject to traditional ownership or under customary use
• Relocation of indigenous groups from lands and natural resources subject to traditional ownership or under customary use is required
• There are significant adverse impacts on tangible and/or intangible cultural heritage that is essential to the identity and/or cultural, ceremonial, or spiritual aspects of Indigenous Peoples’ lives
• Intangible cultural heritage of indigenous groups, such as knowledge and innovations, are used for commercial purposes.

The FPIC process is defined by the assertion of rights and the severity of (potential) adverse impacts, i.e. the more severe the (potential) adverse impacts, the more robust the FPIC process and the greater the effort to seek consent must be.

Sites current in operation must work towards achieving the objectives of this chapter. This might include providing evidence of an FPIC process for current site activities and/or following a process to address past and present community concerns and compensate and/or remedy for past impacts on indigenous peoples’ rights and interests. This process should be agreed to by the affected indigenous groups. New sites, and where changes to sites currently in operation are proposed that could result in new or increased impacts on indigenous peoples as listed above, a process to obtain FPIC must be followed.

Lifecycle planning

The identification of indigenous groups and initial engagement should ideally start prior to the Discovery stage. The collection of baseline data about Indigenous Peoples should begin during Discovery and be refined as the site advances through project study phases and into eventual Operations stage. Engagement with indigenous groups should start in Discovery and continue through to Post-Closure. FPIC applies throughout the LoA.

Box 4I.4 CLOSURE PLANNING: SOCIAL TRANSITION

Requirements for engaging with and managing issues related to Indigenous Peoples remain unchanged as the site moves into closure and post-closure. During operations, sites are required to co-define a post-mining land use plan and social transition success criteria with affected stakeholders (see Tool 1 of the Mine Closure Toolbox). Where indigenous groups are present within a site’s Area of Influence, or, where Indigenous Peoples’ lands or traditional territories overlap with a site’s Area of Influence, sites should consider whether special measures are needed to ensure that such people are meaningfully involved in this process and, where applicable, that FPIC has been achieved for the final land-use plan and any other long-term projects or programmes that aim to achieve the success criteria (e.g. around economic diversification and reduced long-term dependency on mining).

Long-term objectives in the IPP should be aligned with the mine-closure vision, social transition success criteria and post-mining land-use plan. Commitments related to social transition (implemented during operations) should be captured within the IPP or any other negotiated agreement in place with the indigenous community, as necessary. The timeline of the IPP and/or agreement should be clearly written into the document (i.e. whether it will continue after production and into the closure phase).

A participatory monitoring approach with indigenous people should be taken to monitor and evaluate activities related to both social transition and physical and biophysical closure, beginning in operations and continuing through to site relinquishment.

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¹ The World Bank (2019) Indigenous Peoples. Available at: https://www.worldbank.org/en/topic/indigenouspeoples (Accessed: December 2019)