Free Prior Informed Consent (FPIC) in the mining sector Solution-oriented approaches from Canada and their implications for strengthening Indigenous Peoples’ right to consultation in Chile and Peru Imprint PUBLISHED BY Bundesanstalt für Geowissenschaften und Rohstoffe (BGR) (Federal Institute for Geosiences and Natural Resources) Sector program Extractives and Development Stilleweg 2 • 30655 Hannover (Germany) Copyright © 2021 by the Federal Institute for Geosciences and Natural Resources (BGR) All rights reserved under International Copyright Conventions. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without prior permission in writing from the publisher. ABOUT THIS STUDY This study, carried out by Projekt-Consult GmbH, was commissioned by the German Federal Institute for Geosciences and Natural Resources (BGR) as part of the sector program “Extractives and Development”. The sector program is implemented on behalf of the German Federal Ministry for Economic Cooperation and Development (BMZ). The study was set up and implemented under the coordination and with the close in- volvement of Teresa Bornschlegl (BGR). For more information please visit: www.bmz.de/rue/en AUTHORS (ALPHABETICAL ORDER) Teresa Bornschlegl (BGR), Diego Ocampo (independent consultant), Isabel Urrutia (Projekt-Consult) WITH CONTRIBUTIONS BY Zoe Boirin (independent consultant), Maria Sol Iriart (independent consultant) EDITED BY Teresa Bornschlegl (BGR) WITH THANKS TO Dr. Riccarda Flemmer, PhD Martin Papillon and PhD Alexandra Tomaselli for their academic advisory and crit- ical inputs. Maren Kraushaar and Achim Constantin for their comments. Dr. Gudrun Franken and Dr. Jürgen Vasters for their conceptual advice. The authors would like to extend their sincere thanks to all the experts, officials and indigenous leaders from Canada, Chile and Peru who participated in the interviews that informed this study and/or who provided comments to the draft. DISCLAIMER The study serves informational purposes and does not represent endorsement or warranty of any kind what- soever. The description of cases in this study does not express any final legal opinion. This study was prepared from sources the authors believe to be reliable at the time of writing, but they make no assertion as to its con- tinuous accuracy or completeness over time. Opinions and information provision are made as of the date of manuscript completion and are subject to change without notice. The views expressed in this publication are the sole responsibility of the authors and do not necessarily reflect the views of the BGR. COVER PHOTO © Achim Constantin (Mountain range of the Andes in Peru) AS OF May 2021 CONTACT Bundesanstalt für Geowissenschaften und Rohstoffe (BGR) Stilleweg 2 • 30655 Hannover (Germany) • e-mail: [email protected] Table of contents Abbreviations and Acronyms 4 List of tables 5 List of annexes 5 Foreword 7 1. International standards, industry standards and indigenous protocols 10 1 1 International FPIC standards within the international human rights system 10 1 2 Industry-based standards: IFC and ICMM instruments 15 1 3 Indigenous Protocols 17 2. Consultations and FPIC in the mining sector in Peru and Chile 18 2 1 Consultations and FPIC in the mining sector in Chile 18 2 2 Consultations and FPIC in the mining sector in Peru 23 2 3 Remaining challenges against the backdrop of international standards 27 3. Conflicts related to consultations and FPIC in the mining sector in Chile and Peru 32 3 1 Conflicts in Chile 32 3 2 Conflicts in Peru 33 4. Toward implementing FPIC in practice: Solution-oriented cases from Canada 34 4 1 Voisey’s Bay project – Innu and Inuit of Labrador 35 4 2 The Sivumut project and the Inuit of Nunavik 42 4 3 The KGHM/Ajax mine and Stk’emlúpsemc te Secwépemc Nation (SSN) 45 4 4 The NICO project – TłĮcho Government 49 4 5 Main takeaways from the solution-oriented case studies 53 5. Pathways toward a human rights-based approach to FPIC: recommendations 55 Bibliography 59 Annexes 62 4 | Free Prior Informed Consent (FPIC) in the mining sector Abbreviations and Acronyms AIASC Aymara Association Salar de Coposa – Chile BGR Bundesanstalt für Geowissenschaften und Rohstoffe – Germany BCEAO British Columbia Environmental Assessment Office C169 Indigenous and Tribal Peoples Convention, 1989 (No 169) CEACR Committee of Experts on the Application of Conventions and Recommendations CCPR United Nations Human Rights Committee CERD United Nations Committee on the Elimination of Racial Discrimination ECLAC United Nations Economic Commission for Latin America and the Caribbean CONADI National Corporation for Indigenous Development – Chile DP Defensoría del Pueblo (National Human Rights Institution) – Peru DGA General Water Directorate – Chile DGAAM General Directorate of Mining Environmental Affairs of the Ministry of Energy and Mines – Peru DGM General Directorate of Mining – Peru DREM Regional Directions for Mining – Peru EAP Environmental Assessment Panel, Voisey's Bay project – Canada EIA process Environmental impact assessment process, the full cycle from before the drafting of an environmental impacts study to its subsequent review by environmental authorities until the decision on environmental license EID Environmental impact declaration – Chile and Peru EIAS Environmental impact assessment study (Canada, Chile and Peru) EIS-d Detailed environmental impact assessment study – Peru EIS-sd Semi-detailed environmental impact assessment study – Peru FPIC Free, Prior and Informed Consent I/A Court H R Inter-American Court of Human Rights IAAC Impact Assessment Agency of Canada IBA Impact and Benefit Agreement ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICMM International Council on Mining and Metals IWGIA International Work Group for Indigenous Affairs IEPP Indigenous Engagement and Partnership Plan – Canada ILO International Labor Organization INDH Instituto Nacional de Derechos Humanos – Chile INGEMMET Geological Mining and Metallurgical Institute – Peru JBNQA James Bay and Northern Quebec Agreement – Canada KAM KGHM Ajax Mining – Canada KEQC Kativik Environmental Quality Commission – Canada LIA Labrador Inuit Association – Canada MinCul Ministry of Culture – Peru MINEM/MEM/EM Ministry of Energy and Mines – Peru MMinería Ministry of Mining – Chile MoU Memorandum of Understanding – Canada MVMA Mackenzie Valley Resource and Management Act – Canada INCO Vale Inco Newfoundland and Labrador, VINL – Canada ONAMIAP Organización Nacional de Mujeres Indígenas Andinas y Amazónicas del Perú OPIP Organización de Pueblos Indígenas de Pastaza – Ecuador OEFA Agency for Environmental Assessment and Enforcement – Peru QBSA Compañia Minera Teck Quebrada Blanca S A – Chile SCC Supreme Court of Canada SD Supreme Decree Abbreviations and Acronyms, List of tables, Annexes | 5 SEA Environmental Impact Assessment Service – Chile SEIA Environmental Impact Assessment System – Chile SENACE National Service of Environmental Certification – Peru SERNAGEOMIN National Geological Survey – Chile SSN Stk’emlúpsemc te Secwépemc Nation – Canada RCA Resolution of Environmental Qualification – Chile UN DESA United Nations Department of Economic and Social Affairs UNDRIP United Nations Declaration on the Rights of Indigenous Peoples VBNC Voisey's Bay Nickel Company VMI Viceministry for Intercultural Affairs – Peru List of tables Table 1 Prior consultation within the stages of the mining cycle in Chile 19 Table 2 Stages of the SEA consultation process with Indigenous Peoples in Chile 21 Table 3 Consultations within the stages of the mining cycle in Peru 24 Table 4 Stages of the prior consultation process applicable to mining in Peru 25 List of annexes Annex 1 International sources and standards on prior consultation and FPIC 62 Annex 2 Requirements of industry standards 64 Annex 3 Examples of indigenous protocols 66 Annex 4 Legal consultation requirements in relation to mining projects in Chile 67 Annex 5 Legal consultation requirements in relation to mining projects in Peru 69 Annex 6 Prior consultations on mining in Chile – finished and pending 71 Annex 7 Prior consultations on mining in Peru – finished and pending 74 Annex 8 Mining-related social conflicts and litigation in Chile and Peru involving Indigenous Peoples and FPIC (2010-2020) 80 Annex 9 Legal consultation requirements in relation to mining projects in Canada 92 6 | Free Prior Informed Consent (FPIC) in the mining sector Foreword | 7 Foreword The debate on Indigenous Peoples’ right to consul- Indigenous Peoples without their free, prior, and in- tation and the principle of free, prior, and informed formed consent. 3 consent (FPIC) has taken a central place in the dis- course on development and mining and the design of More than thirty years after the adoption of C169, and responsible supply chains. How do responsible min- more than ten years after passing UNDRIP, the opera- ing practices that respect indigenous rights look like? tionalization of FPIC in the mining sector is – as vari- ous UN human rights bodies have documented – still More than 42 million self-identified Indigenous Peo- contested. Similarly, the implementation of the right ples live in Latin America, making up about 8% of the to consultation, enshrined in C169 and UNDRIP, con- population. Despite the efforts to promote their visi- tinues to face