More than eight years after the Mariana dam disaster, Indigenous Krenak people remain scarred by the memories of one of the worst environmental disasters in Brazil’s Minas Gerais state.

Living on the banks of the Doce River for generations, the Krenak peoples were among the most impacted by the rupture of the Fundão iron mine tailings dam that poured 50 million tons of ore and toxic waste into the river. The terrific force of the toxic mud wave killed 19 people and contaminated croplands. Communities remain frustrated over delayed compensation and repairs from the mining companies.

“The impacts are still acutely felt, which underscores the urgent need for a more responsive and just legal system,” says Edson Krenak, an Indigenous writer and advocacy coordinator at Cultural Survival.

Facing the potential impacts and rights violations of future investment projects — and to make sure they have a seat at the discussion table and reap benefits — the Krenak peoples developed their own protocols for investors visiting their lands: their own self-determined protocol to implement their free, prior and informed consent (FPIC). FPIC is a right in the U.N. Declaration on the Rights of Indigenous Peoples in which Indigenous people give or withhold consent on any activities impacting their lands, resources, livelihoods and health.

Implementing FPIC is often complex, bureaucratic and sometimes fraught. To keep things simple and reflect their systems of governance and values, the Krenak peoples created a tailor-made FPIC protocol. And as mining for minerals to feed the green energy transition is expected to rise, legal experts say so, too, does the need for Indigenous communities to create similar protocols.

“Broken promises fuel environmental destruction, violence and injustice, therefore upholding FPIC as a legal and political tool is crucial for a just and sustainable future for Indigenous people,” Krenak tells Mongabay. “Our protocols tailor the consultation process to reflect our traditions and perspectives in projects that are happening in our territories.”

To help all Indigenous communities secure and act on their rights to self-determination, the Securing Indigenous Peoples’ Rights in the Green Economy (SIRGE) Coalition, in collaboration with Indigenous organizations Cultural Survival and First Peoples Worldwide, developed an illustrated FPIC guide.

The guide aims to strengthen Indigenous communities’ understanding of their rights and the principles of FPIC when dealing with corporate engagements, the authors say. It also provides tips to prepare communities in advance of their meetings, work through the negotiation process with external parties, consider steps after any decision is reached, and it delves into the considerations that Indigenous leaders have to take into account when engaging in a project.

How to secure FPIC rights

As the world looks to spur the “clean” energy transition and reduce greenhouse gas emissions, Indigenous peoples’ lands and ancestral territories could be caught in the middle. Of the 30 metals and minerals needed to feed these technologies, about 54% are on and near Indigenous and peasant lands, according to a study published in Nature.

Drafting community protocols to secure FPIC in the face of upcoming clean energy projects is not a new move for some Indigenous communities, especially in Brazil. But having a guide can help clarify or build upon what’s already been done, the authors say. For communities living on mineral-rich lands who are unfamiliar with the process, creating a protocol, they say, is urgent.

“In situations when governments, miners and non-Indigenous lawyers often deliberately employ language that is obscure and unfamiliar to many Indigenous peoples, the communities find a powerful ally in the new FPIC guide, supporting in their journey toward self-determination,” Krenak tells Mongabay.

For communities that don’t have their own protocols, the guide offers an extensive “menu of options,” says Galina Angarova, chair of SIRGE’s Executive Committee.

Before anything begins, the guide recommends forming a “special FPIC team that consists of leaders, respected elders, women, youth and community members” and getting them prepared and organized before the first consultation with investors. Together, the community should also agree to and create a written text of their development paradigm: what resources, livelihoods, sites, activities and values they are willing to sacrifice for investment projects, what they will preserve, to what extent and how.

It is important that such a diverse team of community stakeholders is included to avoid future conflicts or corruption within the community, the guide explains.

“When the investor first arrives, immediately seek legal and technical support, do not sign any documents or agree to anything,” the authors warn. The guide recommends writing down and taking an audio or video recording of every interaction with the project developers.

It further points out the importance for community members to understand their legal rights to lands and ecosystems under national law and learn of the investor’s understanding of the monetary value of their lands and resources.

For example, communities should refuse to entertain large-scale hydroelectric projects that will destroy local watersheds, dry up local aquifers and impact water security, the authors say. They explain that it is also best to describe to investors why community members may be rejecting these activities, using evidence of how such projects will pose a threat to your community’s continued survival, food and water security or spiritual practices.

To mitigate possible environmental threats, projects should not operate without risk insurance. And even if a project is already consented to, community members still reserve the right to withdraw if the investor breaches the contract.

The International Council on Mining and Metals (ICMM), an organization that represents a third of the global metals and mining industry and promotes sustainable development in the mining sector, says it is also reviewing its own approach to FPIC and supporting companies in applying its recommendations. It first developed a position statement in 2008 and updated it in 2013 with six commitments to respect the rights, interests, perspectives and meaningful participation of Indigenous peoples when mining projects are located on their territories. ICMM company members are expected to implement the mining principles as a condition of membership.

“We recognize the need to work harder to achieve greater equity and involvement of Indigenous peoples in decision-making. We are therefore in the process of reviewing the position statement to assess where it could be strengthened further,” Danielle Martin, director of social performance and co-chief operating officer at ICMM, tells Mongabay.

But according to Martin, companies also grapple with challenges relating to the consent process, with divergent views existing between Indigenous peoples, governments, civil society and NGOs on what constitutes good practice by companies. Internationally, there are no countries that protect FPIC to the level of UNDRIP, and nations often apply FPIC in their laws in different ways. While some apply the idea of “consent,” others only look to “consultation,” which falls short of international law. Martin says their review aims to bring more clarity to these challenges.

“We have in countries, like the U.S., where legally it’s ‘consultation,’ it’s not consent,” Kate Finn, executive director of First Peoples Worldwide, says during a webinar. While internationally, rights to consent or an FPIC process are upheld, companies might instead follow national laws, which require a quicker and easier process.

But this is a whole area that opens companies up to Indigenous rights risks if they only go with the national law, says Finn, also an expert in federal Indian law in the U.S. By not following international law, companies face operational, political, legal, reputational and investment risk when Indigenous communities protest the negotiation and assessment process or their lack of consent.

“Recently the [Cobre Panama] nickel mine in Panama and Fenix mine in Guatemala have been ordered to close due to legal decisions and because the mines proceeded without the consent of impacted communities,” Finn says. “And what we know from the report recently put out by Oxfam is that most companies in the transition mineral supply chain are not ready to understand and respect FPIC.”

 

The Fenix nickel mine, a mine tied to conflict and violence with surrounding Indigenous communities for half a century, was ordered to close in late 2023 following a ruling by the Inter-American Court of Human Rights, an international court.

According to the authors, projects implementing FPIC and respecting the self-determination of Indigenous peoples also make collaborations with communities possible.

FPIC is not just a framework for communities to refuse projects. It is also a framework for partnership with such projects, they say, including options for agreeing on benefit-sharing for all, memorandum of understanding, collaboration and conservation initiatives. It’s a platform for negotiation, in which Indigenous peoples are free to set terms, voice concerns and ensure that their rights, traditions and environmental considerations are respected, Krenak says.

“FPIC isn’t a checkbox,” he says. “It’s a continuous dialogue.”

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Banner image: Ofelia Samboni, an Indigenous Yanacona member and landowner in Monclart, holds a stone containing copper. The stone was found in the river close to the copper and molybdenum mining area in Mocoa, Colombia. Image by Antonio Cascio for Mongabay.

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