Scramble for clean energy metals confronted by calls to respect Indigenous rights

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By Sarah Sax, Mongabay

April 22, 2023

This story is published as part of the Global Indigenous Affairs Desk, an Indigenous-led collaboration between Grist, High Country News, ICT, Mongabay, and Native News Online.

NEW YORK — When Francisco Calí Tzay, the United Nations special rapporteur on the rights of Indigenous peoples, spoke at the world’s largest gathering of Indigenous peoples, he listed clean energy projects as some of the most concerning threats to their rights.

“I constantly receive information that Indigenous Peoples fear a new wave of green investments without recognition of their land tenure, management, and knowledge,” said Calí Tzay. His statement at the 22nd United Nations Permanent Forum on Indigenous Issues (UNPFII), and those made by other delegates, made clear that without the free, prior, and informed consent (FPIC) of Indigenous people, these green projects have the capacity to seriously impede on Indigenous rights.

FPIC has always been an important topic at the UNPFII, but this year it’s taken on a renewed urgency.

“The strong push is because more and more of climate action and targets for sustainable development are impacting us,” said Joan Carling, executive director of Indigenous Peoples Rights International, an Indigenous non-profit that works to protect Indigenous peoples’ rights worldwide. Indigenous people around the world are experiencing the compounding pressures of clean energy mining projects, carbon offsets, new protected areas and large infrastructure projects on their lands as part of post-COVID-19 economic recovery efforts, according to The International Work Group for Indigenous Affairs (IWGIA) 2023 report.

As states around the world trend towards transitioning to clean energy to meet their national and international climate goals, the demand for minerals like lithium, copper and nickel needed for batteries that power the energy revolution are projected to skyrocket. The demand could swell fourfold by 2040 and by conservative estimates, pull in $1.7 trillion in mining investments. Although Indigenous delegates say they support clean energy projects, one of the issues is their land rights: more than half of the projects extracting these minerals currently are on or near lands where Indigenous peoples or peasants live, according to an analysis published in Nature.

This can either lead to their eviction from territories, loss of livelihoods or the deforestation and degradation of surrounding ecosystems.

“And yet […] we are not part of the discussion,” said Carling. “That’s why I call it green colonialism — the [energy] transition without the respect of Indigenous rights is another form of colonialism.”

However, standing at the doorway of a just clean energy transition is FPIC, say Indigenous delegates. FPIC is the cornerstone of international human rights standards like the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP) and the International Labor Organization Convention 169 (ILO Convention 169). Though more than one hundred countries have adopted UNDRIP, this standard is not legally binding. It is rather an instrument to interpret national laws. ILO Convention 169 is legally binding, but only to the 24 states that have ratified the convention.

Because of this, delegates are calling on countries and companies to create binding policy and guidelines that require FPIC for all projects that affect Indigenous people and their lands, as well as financial, territorial and material remedies for when companies and countries fail to do so. According to Carling, this will be the mandatory inclusion of FPIC in international standards such as the OECD Guidelines for Multinational Enterprises and putting more pressure on national governments to implement policy reforms that include accountability.

However, there is undoubtedly some pushback. The free prior, informed consent process can lead to a wide variety of outcomes, including the right for communities to decline a highly profitable project, which can often be difficult for countries, companies, and investors to abide by, explains Mary Beth Gallagher, the director of engagement of investment at Domini Impact Investments, who spoke at a side event on shareholder advocacy.

A cobalt mine in central Africa. Image by Fairphone via Flickr (CC BY-NC 2.0).

Indigenous Sámi delegates from Norway drew attention to their need for legally enforceable FPIC protection as they continued to protest the Fosen Vind project farm that the country’s Supreme Court ruled was violating their rights. “We have come to learn the hard way that sustainability doesn’t end colonialism,” said a Sámi delegate during the main panel on Tuesday.

In the United States, the Reno-Sparks Indian Colony, the People of Red Mountain, and members of the Fort McDermitt Tribe filed lawsuits against the Bureau of Land Management for approving the permits for an open-pit lithium mine without proper consultation with the tribes. In the Colombian Amazon, the Inga Indigenous community presented a successful appeal for lack of prior consultation from a Canadian company that plans to mine copper, molybdenum, and other metals in their highly biodiverse territory.

Consternation over governments and multinational companies setting aside FPIC has long extended over other sectors, like conservation and monoculture plantations for key cash crops. In Peru, the Shipibo-Konibo Indigenous people are resisting several large protected areas that overlap with their territory and were put in place without prior consultation. In Tanzania and Kenya, the Maasai are being actively evicted from their landsfor a trophy hunting and safari reserve. Indigenous Ryukyuan delegates condemned the ongoing use of their traditional lands and territories by the Japanese government and the United States military for U.S. military bases without their free, prior, and informed consent.

Eyes on the private sector

While delegates put a lot of emphasis on the lack of FPIC, they put equal emphasis on FPIC as a crucial part of the long-term sustainability of energy projects.

“FPIC is more than just a checklist for companies looking to develop projects on Indigenous lands,” said Carling. “It is a framework for partnership, including options for equitable benefit sharing agreements or memorandum of understanding, collaboration or conservation.”

The focus of this year’s conference has emphasized the growing role of FPIC in the private sector. Investors and developers are increasingly considering the inclusion of FPIC into their human rights due diligence standards. Select countries such as Canada have implemented UNDRIP in full, although First Nation groups pointed out irregularities in how it is being implemented. The EU is proposing including specific mandatory rights to FPIC in its corporate sustainability due diligence regulation. Side events at the UNPFII focused on topics like transmitting FPIC Priorities to the private sector and using shareholder advocacy to increase awareness of FPIC.

Gallagher of Domini Impact Investments says companies have a responsibility to respect human rights, which includes FPIC. “If they have a human rights commission or they have a commitment in their policies not to do land grabs, we have to hold them to account for that.”

In 2021, the world’s largest asset manager, BlackRock, published an expectation that companies “obtain (and maintain) the free, prior, and informed consent of Indigenous peoples for business decisions that affect their rights.” Large banks like Credit Agricole have included FPIC in their corporate social responsibility policy. But in most cases, even when companies have a FPIC policy, it doesn’t conform to the standard outlined in UNDRIP and is not legally binding.

“It doesn’t do the work it’s supposed to do to protect self-determination. It becomes a check-the-box procedure that’s solely consultations and stakeholder consultation instead of protection of rights and self-determination,” says Kate Finn, director at First Peoples Worldwide.

If communities aren’t giving their consent, the company has to respect that, says Gallagher. “There’s obviously points of tension where investors have different agendas and priorities but ultimately, it’s about centering Indigenous leadership and working through that.”

Not properly abiding by FPIC can be costly to companies in countries that operate where it is a legal instrument. It comes with risks of losing their social operation to license, and financial damages. According to a study First Peoples Worldwide, Energy Transfer Partners and banks that financed the now-completed Dakota Access Pipeline, lost billions due to construction delays, account closures, and contract losses after they failed to obtain consent from the Standing Rock Sioux Tribe in the United States.

Ultimately, Indigenous people need to be part of decision-making from the beginning of any project, especially clean energy projects mining for transition minerals on their territories, said Carling. “For us, land is life, and we have a right to decide over what happens on our land.”