Local communities that are affected by mining development do not always have an opportunity to provide meaningful input into project decision-making. Globally, there is an increased recognition that communities’ rights must be respected and that communities should be treated as legitimate, equal partners in mining development. Treating communities as legitimate, equal partners is the critical starting point for governments, communities, and companies to work towards sustained positive outcomes for communities and society over the long-term. It lays the groundwork for relationships that are built on trust and mutual respect, and for decision-making processes that support positive outcomes for communities.
For projects affecting Indigenous Peoples, this is critical. In Canada, this legitimacy has been reinforced through the Crown’s duty to consult and the growing industry commitment to free, prior, and informed consent (FPIC). While the federal government has adopted the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which requires free, prior, and informed consent, it has not yet been implemented through legislation (and that is a topic for a whole separate article). In the meantime, one province, British Columbia, has forged ahead and passed legislation to implement UNDRIP. Regardless, most global mining majors now commit to respecting and implementing FPIC. Yet making a commitment and implementing the practice are hugely different tasks.
To address that gap, communities are relying on their own tools. One such tool is a community protocol. Community protocols set out processes and requirements for formal decision-making and engagement both internally, within the community, and with external actors and stakeholders, like resource companies, government, NGOs, etc. These protocols articulate community-determined visions, values, priorities and expectations. They also set out rights and responsibilities for the community and external actors under customary, state, and international law. There are generally five different topics covered in a community protocol.
1.Community visions, values, priorities. A community protocol is an opportunity for the community to clearly articulate how natural resource development supports the community’s long-term vision for the future. It can also illustrate how their values influence the way mining activity (or other natural resource development) is managed. The act of articulating these elements can be helpful for a community and be the catalyst to revisit or develop a clear vision and set of priories. It is helpful for other stakeholders to understand the perspective of the community as well. Some protocols include detailed maps and land use plans to illustrate how community development priorities are realized in practice.
2. Context. Expectations and requirements must build upon the existing legal framework for natural resource development. Often there are many overlapping legal agreements, historical events and sociopolitical contexts that shape mining activity. When a protocol includes a summary of the social, environmental, political and legal history, it connects the dots for community members as well as proponents and other stakeholders, and ensures that everyone is on the same page.
3. Information sharing and engagement. Protocols can support community engagement on the basis of free, prior, and informed consent. Protocols often include clear expectations for when the community needs to be informed about exploration activities, proposals from proponents and development processes. Getting this right makes engagement and negotiation smoother for all involved. It can also help stakeholders answer several questions, such as when do proponents inform communities of their activities? How do they do that? When and how do communities receive information about mining development and activities? Who is responsible for sharing this information with the wider community? What information do proponents and other stakeholders receive from the community? How and when do they receive that information? Likewise, protocols can include expectations for engagement, such as the cultural norms for meeting with elders and leaders. Ultimately, greater clarity around community expectations and priorities should help to improve relations and engagement, if companies and governments are willing to listen, and recognize it is in their interest to work with the community on an equitable basis.
4. Negotiations, decision making and consent processes. The main crux of the protocol is the process for how community decisions related to mining activities are made. This includes how negotiations happen and how consent is achieved. Including expectations for negotiations can be tricky because of the confidential nature of our established negotiation practices. However, protocols can include what information must be shared and what consultation must occur with community members prior to negotiations, updates on the negotiation processes, non-negotiables and expectations for how the results of negotiations are shared. It is similarly difficult to be prescriptive about the consent process. However, a protocol can outline the community’s approach to obtaining consent. For example, does consent require a referendum with a specific percentage of support, or, unanimous support from the leadership, or, evidence the leadership has incorporated input from the wide community? A clear process provides a road map so community members understand how decisions are made and how their input has been factored in. This can can help manage intra-community conflict and tension. A clear process limits the concern that one sub-group has influenced decision making and that decisions are made for the benefit of specific individuals.
5. Processes for managing impacts, sharing resources and respecting traditional knowledge. This can include expectations for how impacts assessments are completed as well as informing community members on impact management and opportunities, and reporting on commitments and targets. Many protocols include expectations for respecting traditional knowledge. This can include an advisory group that provides input to proponents; traditional cultural practices that are integrated into local hiring and procurement programs, environmental management programs and mine planning; and the identification and protection of sites with cultural significance prior to any approval of development.
The way a protocol is developed is just as important as what it includes. Protocols should be developed through a participatory process that is inclusive of the wider community. In many cases, the process of developing a protocol is just as valuable as the outcome. This proactive approach brings key topics to the forefront sooner in the process and reduces the likelihood of missteps by resource companies. Of course, the responsibility rests with the community for sharing the protocol with proponents, government, and other relevant stakeholders. Ultimately, protocols can be tools to make the relationship between communities, government, and industry more predictable, constructive, and balanced. In the long-term, protocols can help shape resource development to take place in a way that supports a community’s vision for itself and its own priorities.
CAROLYN BURNS is director of operations at NetPositive, a non-profit that works with diverse stakeholders to help local communities see sustained positive outcomes from mining.