FPIC ICMM and CSR: Alphabet soup or sea change

The paper considers the May 2013 position statement of the International Council on Mining and Metals (ICMM) on Indigenous peoples in mining. In particular the paper examines the position statement treatment of the free, prior and informed consent (FPIC) principle as contained in the UN Declaration on the Rights of Indigenous People (UNDRIP) with an especial emphasis on the positions statement’s approach to the ‘consent’ requirement.

This examination is both contextual and textual. Contextually the paper discusses the role and relevance of industry codes of practice (COP) such as the position statement, as well as contemporary notions of corporate social responsibility (CSR) and the extent to which, and mechanisms by which, such codes are considered ‘binding’ by corporations in the absence of legislative obligation. Textually the paper will consider the specific treatment of the consent requirement as outlined in position statement, with a focus upon the apparent ambiguity around whether a project can proceed consistently with the position statement but in spite of the absence of Indigenous consent to it. Analysis of this issue will have regard to a range of publicised views on the FPIC requirement.

This paper concludes by considering the prospects for pursuing Indigenous aspirations such as FPIC through the range of opportunities that the evolution of the scope and effect of CSR obligations in the private sector has created. Particular note is made of instances where an industry COP is given statutory force through legislative referential incorporation.