ICMM's 2024 update: a new benchmark for Indigenous rights in mining

Enhanced guidance for respecting Indigenous rights and partnerships 9 min read

The International Council on Mining and Metals (ICMM) has updated its Indigenous Peoples and Mining Position Statement (the Position Statement), through which ICMM members have affirmed their commitment to respecting the rights of Indigenous Peoples and recognising their importance as partners in the development of mining projects on their lands and territories.

In this Insight, we consider the key changes in the updated Position Statement, which introduces more rigorous guidance for mining companies operating on Indigenous Peoples' lands.

Key takeaways

• We anticipate this strengthened statement will be a reference point for stakeholder expectations around free, prior and informed consent (FPIC), remedy and benefit sharing and should, therefore, be considered when a company is assessing its approach to these issues.
• Companies that are members of ICMM or have committed to operating in line with the Position Statement should be assessing whether they need to review and uplift their policies and procedures to ensure alignment with the expected standard of engagement with Indigenous peoples, and to meet the increasingly heightened expectations and potential future regulatory developments in this area.
• Mining proponents should be aware that, in some respects, the principles in the new Position Statement either go beyond or do not wholly align with the legal position in Australia. It will be important for member companies to have regard to where local laws diverge from the Position Statement, and to take a considered approach to First Nations engagement in light of those differences.

Who in your organisation needs to know about this?

Legal counsel, senior leadership and board members, ESG and human rights teams, project managers, and community engagement teams.

ICMM reaffirms its Position Statement

The ICMM is a global industry body that brings together mining and metals companies committed to safer and more sustainable practices. ICMM members include some of the world’s largest mining companies.

On 8 August 2024, the ICMM introduced significant uplifts to its Position Statement. The first iteration of the Position Statement was published in 2008 and subsequently updated in 2013. This 2024 update reflects a greater commitment to Indigenous Peoples' rights, with increased responsibility on member companies to engage with Indigenous Peoples meaningfully and respectfully (the Position Statement also recognises Indigenous Peoples may be known by other terms such as Tribal Peoples, First Peoples, Native Peoples, Aboriginal, First Nations, Traditional Owners and Customary Landowners). The revisions set new standards for due diligence, consent, remedy and benefit-sharing in mining projects for members of the ICMM.

Requirement for ongoing due diligence

In line with the UN Guiding Principles on Business and Human Rights (UNGPs), the Position Statement now requires companies to carry out due diligence to identify, prevent, mitigate and account for possible adverse impacts on Indigenous Peoples' rights. This process should respect Indigenous Peoples' right to participate in decision-making on matters that affect them, and be guided by the principles of FPIC (see Commitment 2). Further, the Position Statement emphasises that due diligence should be ongoing, recognising that the risks to Indigenous Peoples’ rights may change over time as a company’s operations and/or operating context evolves. The previous version of the Position Statement made no reference to the need to conduct due diligence.

Strengthened requirement regarding FPIC and introduction of concept of benefit sharing

The Position Statement highlights the responsibility of mining companies to respect Indigenous Peoples' rights by requiring companies to obtain agreement from affected Indigenous Peoples demonstrating their consent to anticipated impacts to their land or other rights, and setting out the terms by which impacts may occur and be managed. In accordance with the principles of FPIC, agreement should be achieved through informed and meaningful engagement and good faith negotiation, by means that advance intercultural understanding and that facilitate freely giving or withholding agreement (see Commitment 4). In contrast, the previous version of the Position Statement required companies to work to obtain consent.

Where potential impacts include the relocation of Indigenous Peoples from their lands or territories or significant impacts to critical cultural heritage, the Position Statement provides that companies will explore feasible alternatives to project design in order to avoid such impacts. If relocation and/or significant impacts on critical cultural heritage are unavoidable, companies will obtain an agreement demonstrating the consent of affected Indigenous Peoples (see Commitment 4).

The Position Statement now also explicitly recognises the ability of Indigenous Peoples to withdraw their agreement if there is a non-compliance with the established terms, or a change in the extent of the impacts on their rights (see Recognition Statements).

The Position Statement outlines the procedures companies will follow if they are unable to reach an agreement with Indigenous communities, regardless of whether projects have State authorisation to proceed. That is, any decision by companies to proceed with a project without agreement demonstrating consent should be preceded by a due diligence process and consultation with internal and external experts (see Explanatory Note to Commitment 5).

When a project is to be developed within Indigenous Peoples’ lands or territories, or otherwise with substantial anticipated impacts on their rights, the Position Statement indicates agreement should also include benefit sharing (see Commitment 4). Companies should enable benefit sharing that reflects and is aligned with Indigenous Peoples’ aspirations for social and economic development. Benefit sharing should be equitably distributed and facilitate positive outcomes that extend beyond the life of operations (see Commitment 6).

Remediation

Again in line with the UNGPs, under the Position Statement, member companies are to provide or cooperate in remediation, where the company's activities are found to have caused or contributed to the infringement of the rights of Indigenous Peoples (Commitment 9). Companies are to make available an adequate grievance procedure, which may include processes through which business-related human rights abuses can be raised and remediation can be sought. The Position Statement does not address whether the obligation to provide or cooperate in remediation operates retrospectively (in contrast to Commitment 4 – obtaining agreement – which is expressly stated not to have retrospective application).

Linking climate change, human rights and Indigenous participation in the energy transition

The Position Statement links climate change and nature loss with impacts on Indigenous Peoples, as well as recognising the importance of Indigenous Peoples' participation in the energy transition (see Recognition Statements). It also extends the operation of the commitments in the Position Statement to member activities relating to decarbonisation, renewable energy and nature.

An express link is drawn in the Position Statement between the UNGPs and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), as it states that pursuant to the UNGPs, companies have a responsibility to respect human rights which, for Indigenous Peoples, means respecting the rights affirmed in UNDRIP (Commitment 1). The Explanatory Note to Commitment 1 states that companies should develop, publish and execute company policy commitments on respecting the rights of Indigenous Peoples as outlined in UNDRIP throughout their operating procedures and management systems.

Implications of ICMM's updated Indigenous rights standards for Australian mining companies: opportunities and challenges

In many instances, the new Position Statement is reflective of a move in standards towards the high watermark recognition of Indigenous Peoples' rights as set out in UNDRIP (interpreted in accordance with the UNGPs). It also demonstrates alignment with global trends towards mandatory human rights due diligence and increasing stakeholder expectations surrounding ESG-related due diligence and respect for human rights.

However, in a number of ways, the principles in the new Position Statement go beyond or do not align with the legal position in Australia. For example, the Native Title Act 1993 (Cth) (NTA) is prescriptive on matters such as the identity of the party that must be negotiated with and certain procedural requirements those negotiations must adhere to. The NTA also sets out when a negotiated agreement is not required (ie, where native title is determined not to exist or where the National Native Title Tribunal determines an act can be done after good faith negotiations have occurred for a period of six months or more but have not resulted in an agreement). Further, the NTA and many cultural heritage laws in Australia do not mandate FPIC must be obtained before a project can proceed.

Actions you can take now

Companies, particularly members of the ICMM and those that have made express public commitments which reference the Position Statement, should assess whether they need to review and uplift their policies and procedures to align with the expected standards of engagement with Indigenous Peoples, while also meeting increasingly heightened expectations and potential future regulatory developments in this area.

We anticipate that this updated and strengthened statement will become a reference point across the industry for expectations around FPIC, remedy and benefit-sharing, and should therefore be considered when assessing the approach by mining proponents to these issues.

Member companies will need to have regard to where local laws diverge from the Position Statement, and to take a considered approach to First Nations engagement in light of those differences.