Report

UNDERMINING RIGHTS

Indigenous Lands and Mining in the Amazon

Partners:
Download PDF

Recommendations

Based on the research findings, five recommendations are presented to empower indigenous peoples to take charge of their own development and to ensure mining on indigenous lands delivers positive social and economic outcomes while not causing irreparable damage to the environment. The recommendations target four audiences: indigenous peoples and their representative bodies and supporters, government agencies responsible for mining and for supporting indigenous people, miners and mining companies, and the broader human rights and forest conservation communities. The challenges and opportunities in the Amazon are not unique. As a result, these recommendations likely also apply to other countries around the world where mining is occurring on indigenous or community lands.

As the global demand for minerals rises and prices soar, governments of Amazonian countries are placing mineral exploitation at the center of their economic development plans and putting in place incentive packages for mining investments. Now, with the novel coronavirus pandemic shutting down many sectors of the economy, governments are allowing large-scale mining to continue operating and encouraging expansion in Peru and other Amazonian countries. Mining, both legal and illegal, as well as associated infrastructure development (e.g., roads, railways, and dams) and other supportive investments are moving deeper into the Amazon to exploit the world-class reserves. These developments, coupled with the expansion of agriculture, cattle production, and other economic pressures, threaten indigenous lands and the people who hold and depend on the lands and natural resources for their livelihoods and well-being. In Brazil, which holds 60 percent of the forest and indigenous peoples in the Amazon, commercial mining on indigenous lands is not permitted, but the government is moving ahead with a bill that would open indigenous lands to mining and other developments.

The research findings provide compelling evidence of the following:

  • The laws governing minerals and mining by third parties on indigenous lands provide indigenous peoples with some rights over their lands and the minerals on and below it. Overall, however, they put indigenous peoples at a legal disadvantage with miners. Legal miners have important authorities to enter onto and use indigenous lands to realize their mineral rights, while indigenous peoples lack critical rights that would help them better protect their lands.
  • Many indigenous peoples in the Amazon do not want commercial mining by third parties on their lands and have deployed a range of measures such as protests and litigation—some successful, others less so—to keep miners off their lands.
  • All mining, whether ASM or industrial mining, on indigenous lands is linked to environmental damages, including the loss of forests and associated ecosystem services. Indigenous lands absent mining have significantly lower deforestation rates than indigenous lands with mining.

As a result, the expansion of mining in the Amazon must be carefully considered and, if sanctioned, well planned and monitored. Efforts are needed to sufficiently empower indigenous peoples to take charge of their own development, protect indigenous lands and safeguard local livelihoods from the significant and adverse social and environmental impacts of mining, provide that miners are respectful of indigenous peoples and mining operations are conducted in responsible ways, and ensure national laws and directives are well implemented and enforced.

The research findings have implications for indigenous peoples confronted with mining as well as for governments, development assistance agencies, miners and mining companies, NGOs, and other civil society organizations. Five recommendations are provided that recognize the challenges confronting indigenous peoples in the Amazon and that build on the laws and experiences in the six research countries. The broader literature on mining makes clear that the challenges and opportunities in the Amazon are not unique (A.J. Bebbington et al. 2018; D.H. Bebbington 2018a, 2018b; Alden Wily 2018). As a result, these recommendations likely also apply to other countries around the world where mining is occurring on indigenous or community lands, threatening people and local environments.

While the research focused on minerals, the findings may also have implications for oil and natural gas developments and perhaps the extraction of other natural resources. Like mining, the footprint of oil and natural gas extraction commonly does not reach the geographic scale of agriculture and livestock, but the effects of these activities can be felt in ways that are just as problematic, such as the infrastructure developed for oil extraction opening up land for farming and ranching (A. Bebbington et al. 2018; RAISG 2018b).

The five recommendations are:

Provide strong legal rights to indigenous peoples:

While the national laws in the research countries include provisions designed to empower indigenous peoples and safeguard indigenous lands for indigenous peoples, they do not establish the strong legal protections needed for indigenous peoples to manage and use their lands and forests for their own development purposes. This is the case for indigenous peoples holding land under customary tenure arrangements and those with formal land rights (e.g., land titles or those living on lands designed by government for their use).78 This finding is consistent with the legal protections afforded indigenous lands in cultures around the world (Alden Wily 2018). As a result, indigenous peoples in the research countries and elsewhere are at a legal disadvantage compared to miners with formal rights to minerals on indigenous lands.

Stronger rights would further empower indigenous peoples and help them to sustainably manage their lands and protect their forests and other natural resources. Tenure security creates critical incentives for indigenous peoples to make land-related investments in their lands and forests by providing them with high expectations of rights over the returns. Governments must enact legislation that better protects indigenous peoples and their lands, CSOs must press their governments to make these reforms, development agencies should use their support to ensure effective implementation, and mining companies should respect the new laws and build partnerships with indigenous peoples to ensure they benefit in meaningful ways.

The research identified four sets of rights critical for indigenous peoples to secure and protect their lands—land rights; mineral rights; the right of free, prior, and informed consent; and the right of first refusal.

Land rights:

Like all citizens, indigenous peoples need strong, secure land rights to effectively protect, use, and manage their lands. Governments should review and, if necessary, reform national laws to ensure indigenous peoples have the rights and authorities they need to take charge of their own development. National laws in the research countries recognize indigenous lands and customary tenure systems, although such legal recognition alone does not always translate into tenure security. Indigenous peoples in the research countries have rights to access and occupy their lands, but their management, withdrawal/use, exclusion, and alienation rights are often limited. In many cases, they cannot exclude all unwelcome people from entering and using their lands, cannot lease their lands to third parties, and cannot withdraw minerals or other natural resources for commercial purposes without receiving a separate government authorization.

Moreover, in many countries, these rights are conditioned—sometimes in law, and often in practice—on indigenous peoples being formally recognized as such by the government and/or on them having formal land rights (i.e., holding a land title or other official land document). Such conditions, along with other benefits, have encouraged many indigenous peoples to become formally recognized as indigenous and to formalize their customary land rights (“double lock” their land rights) (Alden Wily 2017). Many indigenous peoples, however, need outside assistance to navigate and complete the formalization procedures. Government definitions of indigenous people are often unclear and open to interpretation. Land formalization procedures are commonly complex, costly, and do not recognize all customary rights and land (Notess et al. 2018). Governments should streamline the formalization procedures and provide indigenous peoples with the assistance they need to complete the processes.

The values and customs of many Amazonian indigenous peoples align with and support sustainable land management and forest conservation. Limiting land rights can protect communities vulnerable to political and economic interests from exploitative and corrupting relationships with external actors. But limiting land rights also means limiting economic options and opportunities for indigenous peoples. Finding the right balance is key to empowering indigenous peoples.

Governments should couple laws that recognize strong land rights for indigenous peoples with incentive packages that promote and support sustainable land use and forest conservation. For example, payment for ecosystem services (PES) schemes that reward indigenous peoples who conserve forests and protect biodiversity can further encourage sustainable forest management (de Koning et al. 2011). Such incentive packages can also protect against changing customs and external political and economic pressure, increase tenure security, and reduce conflict (Jones et al. 2020). Recognizing significant land rights for indigenous peoples is fairer, more equitable, and more consistent with laws governing most private property tenure systems.

Mineral rights:

Indigenous peoples are empowered when they have more rights and greater control over the minerals (and other natural resources) on and below the surface of their lands. In all research countries, minerals (along with oil, natural gas, and other high-value natural resources79) are under the control of the government, which has the authority to grant mineral rights to outside miners, mining companies, or other entities. Indigenous peoples in the research countries have only limited rights over the minerals on their lands. For example, they may use minerals for subsistence, domestic, or customary purposes without government approval in Brazil, Colombia, and Guyana, but authorization is required to mine even for domestic purposes in Bolivia, Ecuador, and Peru. Commercial mining by indigenous peoples on their lands requires a separate authorization from the government in all research countries, except Brazil, where commercial mining on indigenous lands is currently prohibited.

Governments should reform laws to recognize more rights for indigenous peoples over the minerals on their lands whether the lands are formalized or held under customary tenure arrangements. Doing so would give them greater control over their lands and minerals and help ensure they have a voice in decisions regarding mineral developments on their lands. It would also empower them in their negotiations with miners or mining companies operating on their lands and help ensure they receive a fair share of resulting benefits (see below).

National laws in all six research countries establish procedures for the acquisition of mineral rights for commercial exploration and exploitation, but only in Colombia does the law provide for differentiated, simplified procedures for indigenous peoples to acquire rights to commercially mine their land. In Colombia, the law also mandates that the government provide indigenous peoples comprehensive technical assistance to exercise their mineral rights, including support to mitigate the environmental risks. While many indigenous peoples in the Colombian Amazon do not currently want to commercially mine their land, this law provides an important economic opportunity should they want or need to engage in mining in the future. Indeed, given the important role of ASM in rural livelihoods, licensing procedures should be made more accessible to rural people as part of the governments’ efforts to curtail illegal mining.

In the other five research countries—Bolivia, Brazil, Ecuador, Guyana, and Peru—indigenous peoples must meet the same requirements as other parties applying for commercial mineral rights. The lack of technical expertise and financial resources of indigenous peoples, however, hinders, delays, or prevents them from being granted such mineral rights. Other countries should follow Colombia’s effort to address these entry barriers and establish streamlined procedures for indigenous peoples to commercially mine their land. The laws should also require that the government provide them with the technical assistance needed to ensure indigenous commercial mining is undertaken with minimum social and environmental impacts.

Right of free, prior, and informed consent:

Governments should recognize the right of free, prior, and informed consent (FPIC), not just consultation, for indigenous peoples regarding mining and other developments that may affect them or their lands. FPIC is a collective right embedded in the right to self-determination. It helps ensure indigenous peoples are consulted and participate in decision-making on all development matters that affect them. FPIC is central to indigenous peoples protecting their forests from the harmful effects of mining as well as other extractive industries, agrobusiness, ranching, and infrastructure developments. The right of FPIC is particularly important for indigenous peoples who do not have strong, secure rights over their lands and the minerals on their lands. Without FPIC, indigenous peoples are subject to developments that may threaten their well-being and their forest homes.

All six research countries have adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which calls for the right of FPIC. Governments should enact enabling national legislation to domestic UNDRIP and FPIC, specifically. Indigenous peoples in Guyana have, by law, a limited right of FPIC, but those in Bolivia, Brazil, Colombia, Ecuador, and Peru only have the right to consultation. The government of Guyana should strengthen its FPIC law by, for example, recognizing FPIC of indigenous peoples who hold lands under customary tenure arrangements and for all developments, not just mining and forestry. Amazonian governments should build on Guyana’s example and enact legislation that recognizes the right of FPIC to indigenous peoples as well as Afro-descendants and other communities that hold land in a collective manner. The right of FPIC should not be limited to just a few types of developments, and governments should only have the authority to override refusal of consent to developments that are in the narrowly defined national or public interest (e.g., in countries around the world, economic development projects, such as mining, are not recognized as a genuine public interest) (Veit et al. 2008; Tagliarino 2016, 2017).

Right of first refusal:

Given the interest of some indigenous peoples to commercially mine their land (see Guyana Case Study), governments should recognize the right of first refusal to exploit minerals for commercial purposes. With this right, indigenous peoples must first refuse their right to exploit minerals on their lands before the government can grant the mineral rights to a third party. In Colombia, national law recognizes the right of first refusal for indigenous peoples and Afro-descendants. The law does not recognize this right for indigenous peoples in the other five research countries. In Brazil, Bill 191/2020, which would open indigenous lands to mining and other developments, would provide this right to indigenous peoples (Box 4.4). The right of first refusal is particularly important for indigenous peoples who do not have strong, secure rights to their lands or the minerals on their lands or the right of FPIC.

The government of Colombia should consider reforming its laws to strengthen the right of first refusal for indigenous peoples to be more impactful. Other governments should follow Colombia’s example in recognizing the right. The right of first refusal should be recognized for all communities, not just indigenous peoples, that hold land in a collective manner and whether this land is titled or held only under customary tenure arrangements. Moreover, in exercising their right of first refusal, indigenous peoples and other communities should have the option of either directly engaging in commercial mining or establishing a partnership or joint venture with a third party. In Colombia, the law allows indigenous peoples to transfer part of their mining concession to third parties, with certain limits, and mandates the government to provide them with technical support to ensure the mining meets established social and environmental safeguards. Governments, NGOs, and development organizations can help indigenous peoples build the skills and capacities they need to mine safely and mitigate environmental damage. They can also support indigenous peoples in their negotiations with external miners or mining companies to ensure fair benefit-sharing agreements (see below).

Establish strong environmental safeguards:

National laws in all research countries provide for the protection of forests and the environment and require miners and mining companies to minimize their environmental impact, whether mining on indigenous lands or other lands. National laws prohibit mining on certain sensitive lands, require compensation for damages to property, and mandate that land is restored when mining operations are concluded. Environmental Impact Assessments (EIA) are required to ensure that mining projects will be conducted in accordance with environmental safeguards and without causing avoidable damage to the environment. These environmental safeguards are often codified in national environmental protection laws as well as mining regulations and indigenous rights legislation. While some national environmental safeguards meet international standards, others, however, fall short and must be strengthened to provide the level of protection needed to adequately safeguard forests and their critical ecosystem services, including carbon sequestration. Stronger environmental laws coupled with effective enforcement (see below) will help ensure the forest homes of indigenous peoples in the Amazon are protected.

All mining brings risks to the environment and to the health and well-being of affected populations. The process of extracting minerals from the ground, by ASM or industrial mining, is by its very nature damaging to the environment. In the Amazon, large-scale strip mining results in the loss of natural vegetation and critical ecosystem services, including carbon sequestration and biodiversity, while ASM often involves the dredging of rivers, poisoning of water from the use of mercury, and loss of fisheries. The GIS analysis conducted for this report finds that indigenous lands not affected by mining have lower deforestation rates than indigenous lands with mining. These findings are consistent with other research that shows deforestation rates on tenure-secure indigenous lands in the Amazon are significantly lower than on similar lands not managed by indigenous peoples (Ding et al. 2016; Blackman et al. 2017; Blackman and Veit 2018).

The links between mining and deforestation must be recognized by governments and their development partners (e.g., Global Environmental Facility and Green Climate Fund) and integrated into their analysis and projects on forest conservation and climate mitigation (e.g., REDD+). National finance and mining ministries together with the World Bank, other international financial institutions and instruments, and private finance for mining projects must also consider how their investments are contributing to forest loss, climate change, and resulting rural hardships. Better connections are needed between ministries, forest departments, and government agencies responsible for indigenous affairs to address policy incoherence, and more cooperation is needed to ensure national sustainable development goals are achieved.

To mitigate these risks, mining, whether conducted by mining companies or indigenous peoples, must recognize and adhere to minimum social and environmental safeguards. Major mining disasters, such as the Mariana and Brumadinho tailings dam collapses in Brazil, and their lasting impact on local populations and the environment, make clear that mining companies must invest more in protecting the environment and local populations. In all six research countries, governments are by law responsible for monitoring and overseeing mining companies to ensure their operations are conducted in accordance with the law and the conditions in their licenses or concession agreements, that they are meeting their social and environmental commitments, and that they mitigate and compensate for any environmental damage or other loss caused by their activities. When mining activities damage the environment on indigenous lands, the government in all six research countries has the authority to arrest and detain illegal miners, impose fines, and mandate compensation for the affected indigenous peoples.

New mining technologies are being developed and adopted by mining companies that minimize the footprint of extraction and throughout the value chain (e.g., processing, transportation, production, and sale of mineral products),80 and that promise better social and environmental outcomes (Mayorga Alba 2009; World Bank 2017b). These include: advanced airborne gravity gradiometer and 3D imaging technology that make mineral exploration less destructive to the environment; more efficient shaft and tunnel boring machines that increase worker safety and reduce the environmental footprint; automated robotic technologies that improve worker safety; microorganisms that recover minerals, such as copper, from tailings; electric vehicles that reduce emissions and temper climate change; and remote operating and monitoring centers that improve worker safety and reduce environmental impacts (Mining Technology 2014).

To ensure mining operations do not irreparably damage the environment and the nation’s valuable mineral resources provide the promised benefits of local and national development, governments must also be more selective in the allocation of mineral rights and mining concessions. Companies with strong track records in mining operations that meet or exceed national and international social and environmental standards, that make use of the latest technologies, and that engage communities and protect forests should be prioritized. Proposal vetting processes should not just focus on the public revenue generated or how quickly the mine can begin production. Broader selection criteria can create incentives for companies to adopt mining practices and technologies that are less damaging to the environment and more supportive of indigenous peoples and other affected communities.

Build indigenous capacity:

As the threats to their lands, livelihoods, and well-being escalate and become more complex, many indigenous peoples realize they lack the expertise, contacts, and resources needed to effectively address the challenges and mitigate the risks. Governments and their development partners can provide training and critical technical and financial resources for indigenous peoples to develop new skills and capacities to better protect their lands and themselves. These include skills to effectively negotiate with mining companies, monitor their lands for illegal activities, and better protect themselves and their community from harm.

When indigenous lands are mined by third parties, negotiated agreements between indigenous peoples and the miners play a critical role in setting the conditions under which that mining occurs (O’Faircheallaigh 2018). Conditions must be established on the use of indigenous lands, compensation for any loss from or damage to property caused by mining operations, and for benefits-sharing arrangements (see below). Communities “must have the ability to negotiate on fair terms with government and private companies . . . [and] must be able to benefit equitably from extractive processes” (UNDP 2012). A company will typically have its own internal legal team and even outside counsel to negotiate an agreement. Indigenous peoples and other local communities, on the other hand, are often at a disadvantage given their unfamiliarity with mining, limited awareness of their legal rights, and lack of financial resources to represent themselves or hire adequate legal representation or independent outside experts (O’Faircheallaigh 2008; Ruwhiu and Carter 2016; Carlos Zambrano-Torrelio, personal communication, 2020). With this imbalance in experience and negotiating skills, social issues and conflicts within the community and with miners often arise and can become violent.

Governments, NGOs, and development assistance agencies should step up to help build indigenous capacity to better negotiate with mining companies and support independent counsel for indigenous peoples in these processes. Such independent counsel could come from public interest law NGOs or private law firms. Ombudsman offices within the government (e.g., Defensoría del Pueblo in Peru, Colombia, and other Latin American countries) can provide independent oversight or mediate these negotiations.

box 6.1 | Monitoring of Indigenous Land

One example of new monitoring technology is Global Forest Watch (GFW), an online platform that provides near real-time information about where and how forests are changing in addition to tools for monitoring forests.a Several international NGOs provide training for indigenous people and other local communities on how to use GFW as well as a new mobile app called Forest Watcher, which provides offline access to GFW’s forest cover change data and other contextual data (e.g., forest cover data and fire alerts).b These tools allow deforestation to be easily located and reported. Indigenous people in the Amazon using Forest Watcher have successfully identified and halted illegal mining and other activities on their land. Some indigenous groups have used the app to collect information as evidence in a court of law to prosecute wrongdoers.c

Notes:

aGFW 2020b

bGFW 2020c

cWeisse and Nogueron 2017; Ionova 2019

When mining takes place on indigenous lands it is important for indigenous peoples to have the skills and capacity to monitor for compliance of the mining agreements and to detect any illegal activities. In the absence of adequate government support, some indigenous peoples have organized their own patrols to monitor their lands, evict intruders, and confiscate their equipment (Veit 2018). While such actions can be effective, they also expose indigenous peoples to new risks, including violent attacks. All citizens, including indigenous peoples, have certain rights to protect themselves and their property. In the research countries, indigenous peoples have the right to evict illegal operators and unauthorized actors from their lands. National laws, however, do not give them the authority to capture, retain, judge, or punish illegal operators; confiscate equipment; or take possession of any minerals extracted by the illegal operators.

box 6.2 | Protecting Land Defenders

When indigenous people in the Amazon stand up for their rights, intimidation and violence can ensue. In many places around the world, land and environmental defenders face diverse and growing threats, including surveillance and stigmatization (being labeled as “anti-development,” “anti-state,” “traitors,” “terrorists,” or “criminals”), harassment, criminalization of their efforts, false criminal charges and civil actions, and acts of physical violence, including torture and murder. Threats to land and environmental defender organizations include burdensome registration and government reporting requirements, Strategic Lawsuits Against Public Participation (SLAPP) suits, restrictions on funding, and other regressive laws and regulations.

There is an urgent need to achieve more rigorous protections for all defenders, but especially indigenous people given their unique vulnerabilities. All governments have the obligation and the authority needed to protect defenders. While many acknowledge the threats to defenders, few have prioritized actions that have significantly reduced those threats or improved the protection of land and environmental defenders. Attacks continue to be underreported, and there are high levels of impunity for those responsible. This is particularly alarming for indigenous people in the Amazon given the consistently high incidence of harassment and murders in Latin America.

Source: WRI authors.

Governments must step up to take charge of their policing roles and responsibilities, including protecting indigenous peoples and their lands from illegal mining operations. Indigenous peoples and their supporters can help governments by monitoring their lands for illegal operators, reporting incidents of unauthorized activities, supporting (and, in some circumstances, participating) in government patrols, and providing evidence for the prosecution of offenders in a court of law.

To support government operations, indigenous peoples can build skills in collecting data on illegal activities that meet the legal burden of proof. Indigenous organizations and NGOs can raise awareness on the law or rules of evidence81 and provide training on tools and techniques for collecting information that meets the standard of evidence. At the same time, local and national government agencies and courts of law must accept such information from indigenous peoples in their investigative and sanctioning processes. There are precedents for governments to officially recognize indigenous monitoring efforts and the data generated, as well as partnerships for joint monitoring efforts, including patrols. In Peru, Law, Environment and Natural Resources (Derecho, Ambiente y Recursos Naturales, DAR), a national NGO, is developing a legal framework on the use of information collected by indigenous peoples as legal evidence in a court of law (DAR 2020). Governments should also establish clear, accessible procedures for indigenous peoples to make complaints or appeal decisions, and for them to request and receive relevant government and company information.

Indigenous peoples would benefit from training on ways to safely monitor their lands for illegal activities. In recent years, new technologies have been developed and made available to quickly and precisely map indigenous lands, and to monitor large areas in real or near-real time, including using data from unmanned aerial vehicles/drones and satellites (Box 6.1). Deploying such technologies to monitor indigenous lands can be safer than manned patrols as they eliminate the possibility of direct confrontation with illegal miners or other violators. All monitoring should be coordinated with local police forces, which have the authority to apprehend violators and confiscate their equipment.

As the risks to them and their communities increase, indigenous peoples are taking more precautions to carry out their activism and campaigning safely and effectively, and to defend themselves from harassment and physical attacks. This is particularly important for indigenous women as they become ever more active in protecting their lands from mining (Mujeres Defensoras 2018; Brown 2018b). Many land and environmental defenders, however, would likely benefit from gaining a better understanding of their legal rights, training on risk assessment information systems, learning how to better recognize threats and minimize risks, building capacity in new approaches to deescalating confrontational situations, and building skills in self-defense techniques. Indigenous activists should also have access to emergency funds, contact information for legal counsels, and NGOs that can provide urgent assistance and other support resources and protection mechanisms. Governments must establish an enabling environment that strengthens safeguards and reduces risks to indigenous defenders, adopt mechanisms to better monitor conflicts and attacks against defenders in near-real time, empower institutions responsible for protecting defenders, increase access to justice for indigenous activists, and ensure the people responsible for threats and attacks are held accountable for their actions (ProDESC 2019; Scheidel et al. 2020) (Box 6.2).

Ensure responsible mining:

All mining in the Amazon, whether by indigenous peoples, large mining companies, or ASM miners, should be responsible mining—mining that is safe, fair, and mitigates social and environmental risks. Governments must provide stronger oversight of mining operations and better enforce applicable laws, but miners and mining companies must also become better corporate citizens and take more responsibility in meeting social and environmental safeguards. Companies can no longer operate without social legitimacy, skirt the law and cause major environmental devastation, and simply leave when an area is exhausted of economically viable minerals. New, stronger national laws and regulations are needed to ensure miners and mining companies operate safely and with the least social and environmental harm.

Some mining companies and mining associations have established social and environmental standards (Box 6.3), made voluntary commitments to responsible mining, and established corporate policies or guidelines that align with the commitments. Several mining standards exist for large-scale mining and ASM. Mining company-developed standards include the Mining Principles of the International Council on Mining and Metals (ICMM 2020b) and the Responsible Gold Mining Principles of the World Gold Council (WGC 2019) as well as WGC’s Conflict-Free Gold Standard (WGC 2012). Other responsible mining standards have been developed by mining associations such as the Artisanal Gold Council and the Mining Association of Canada.

box 6.3 | International Council on Mining and Metals (ICMM)

ICMM is an international organization dedicated to a safe, fair and sustainable mining and metals industry. ICMM brings together 27 of the world's leading mining and metals companies and 36 regional and commodities associations to address the core sustainable development challenges faced by the industry. It serves “as a catalyst for change; enhancing mining’s contribution to society.” ICMM strengthens environmental and social performance. Participating companies include Alcoa, Anglo American, Anglo Gold Ashanti, Barrick, BHP, Codelco, Freeport-McMoRan, JX Nippon Mining & Metals, Minera San Cristóbal, Newmont Mining and Goldcorp, Rio Tinto, and Vale.

ICMM’s 10 Mining Principles define the good practice environmental, social, and governance requirements of company members. These principles are:

  • Ethical Business. Apply ethical business practices and sound systems of corporate governance and transparency to support sustainable development.
  • Decision-making. Integrate sustainable development in corporate strategy and decision-making processes.
  • Human Rights. Respect human rights and the interests, cultures, customs and values of employees and communities affected by our activities.
  • Risk Management. Implement effective risk-management strategies and systems based on sound science, and which account for stakeholder perceptions of risk.
  • Health and Safety. Pursue continual improvement in the health and safety performance with the ultimate goal of zero harm.
  • Environmental Performance. Pursue continual improvement in environmental performance issues, such as water stewardship, energy use, and climate change.
  • Conservation of Biodiversity. Contribute to the conservation of biodiversity and integrated approaches to land-use planning.
  • Responsible Production. Facilitate and support the knowledge base and systems for responsible design, use, reuse, recycling, and disposal of products containing metals and minerals.
  • Social Performance. Pursue continual improvement in social performance and contribute to the social, economic and institutional development of host countries and communities.
  • Stakeholder Engagement. Proactively engage key stakeholders on sustainable development challenges and opportunities in an open and transparent manner. Effectively report and independently verify progress and performance.

Source: Based on data from ICMM 2020b, modified by WRI authors.

Some mining companies are protecting forests and biodiversity by staying out of national protected areas and identifying no-go areas for mining on indigenous and other lands, such as ecologically sensitive areas (e.g., headwaters and primary intact forests) and sacred places (Miranda et al. 2003). Companies are also making progress on restoring and reforesting their mining sites when operations have concluded. In Brazil, the multinational corporation Vale has been a pioneer in reforestation with natural tree species (Funk 2015; Pires et al. 2017). In recent years, some companies have also worked more closely with indigenous peoples and other communities affected by their operations in an effort to win their support. Leading mining companies are also increasing their CSR investments, focusing on local initiatives designed to address the social, economic, and environmental impacts of their mining.

As indigenous peoples and other local communities learn of their rights, take actions to protect their lands, and press miners to perform better, more mining companies recognize the growing risks to their reputation and bottom line. Risk assessors working for mining companies and their investors are increasingly concerned about land conflicts and are factoring associated risks into their assessments. National and global information hubs, such as Tierras Indígenas in Paraguay (Tierras Indígenas 2020) and LandMark: The Global Platform of Indigenous and Community Lands (LandMark 2020), provide precise boundaries of indigenous and community lands (formalized and customarily held lands) and other critical information, and are now commonly used by risk assessors.

The industry-developed standards and the voluntary commitments made by ASM miners and large multinational mining companies are to be applauded and encouraged. There is, however, growing evidence that voluntary approaches do not always lead to responsible mining as many companies fail to meet their commitments (WEF 2016). At the same time, the effectiveness of company CSR initiatives in mining (and in oil and natural gas) is being questioned (Sharma and Bhatnagar 2014). Over time, the aspects of these voluntary approaches that meet international standards should be incorporated into national laws and regulations. Companies that make voluntary commitments (e.g., engage in comprehensive community consultation processes and establish no-go areas) may be at a competitive disadvantage with those that do not. Enacting legislation requiring all companies to meet the same social and environmental standards can level the playing field for companies that are voluntarily following good practices.

Certainly, more efforts are needed to ensure all mining is responsible mining. In particular, more needs to be done with regard to transparency and sharing of company information with stakeholders, company engagement in meaningful consultations with affected indigenous peoples and local communities, and benefit-sharing arrangements with those negatively impacted by mining operations. For example, mining and other companies do not always provide communities with information on the full extent of the environmental impacts of their operations. Too many companies abridge the requisite community consultation processes by convening just a single meeting or acquiring a token approval from a community leader (Notess et al. 2018). And women continue to face systemic discrimination in all phases of mining projects and in accessing their economic benefits (Hinton et al. 2003; Oxfam 2017).

Companies must also increase their support to indigenous peoples and other communities and negotiate fairer agreements that provide benefit-sharing packages that address community interests and aspirations and strengthen local capacity for self-determined development. Indigenous peoples should insist on formal agreements and governments should mandate them (Dalupan 2015; Loutit et al. 2016).82 Such community-company benefit-sharing agreements should include both financial and nonfinancial benefits. For revenue sharing, indigenous peoples and communities could demand fixed, predictable payments (although these may not change if the company’s profits increase); royalties based on the volume of production or outputs; revenue streams based on company profits; or an equity share in the mine, which is more risky and dependent on the market.83 Nonfinancial benefits could include local employment opportunities, commitments to source goods and services from local providers, support services, and training in transferable skills (e.g., business and management skills that equip the community to continue its economic development if the mine fails, becomes less productive, or closes) (Dalupan 2015; Loutit et al. 2016).

Ensure effective implementation and law enforcement:

To protect indigenous peoples, their lands, and their livelihoods, Amazonian governments must strengthen the public institutions that have critical roles in advancing indigenous matters. These include government agencies and departments responsible for establishing and implementing indigenous policies; for mapping, demarcating, and documenting indigenous lands; and for preventing invasions of indigenous territories by unauthorized outsiders. FUNAI in Brazil, the Ministry of Culture in Peru, and other national government agencies in the Amazonian countries with such responsibilities must be empowered—politically, legally, and practically—with sufficient human and financial resources to effectively discharge their roles and duties (Zambrano Chávez 2020). Actions that weaken these agencies by cutting budgets or rolling back their authorities threaten to further marginalize indigenous peoples and could lead to more conflict.

Amazonian governments must also strengthen their oversight of mining on indigenous lands. Mining operations must conform with the law and meet the provisions of licensing and concession agreements. Illegal operations must be halted, and illegal occupants must be removed. Government efforts should not be limited to capturing and prosecuting illegal miners on indigenous lands but also include the individuals who hire, finance, or otherwise facilitate the illegal miners. Those who sell and profit from the illicit trade in gold, diamonds, and other minerals must also be identified and prosecuted. Such operations require coordination across national borders and partnering with relevant international police bodies, such as the International Criminal Police Organization (INTERPOL) and the International Criminal Court (ICC).

The research provides clear evidence (see Case Studies) that while national laws establish some social and environmental safeguards, they are not always implemented by miners or effectively enforced by governments. Illegal mining is widespread, the right of consultation is often violated by governments and mining companies, miners do not always mitigate the environmental impacts of their operations, indigenous peoples are not always fairly compensated for their losses, and many are forcibly evicted from their lands and not adequately resettled elsewhere.

While national social and environmental safeguards must be strengthened to meet international standards, effective implementation and enforcement of the existing laws would help protect indigenous peoples and their lands from the most harmful effects of mining. In the absence of effective law enforcement, indigenous peoples and their forest homes suffer. The research shows that forest losses on indigenous lands with mining are considerably greater than on indigenous lands without mining (see GIS Analysis). With the loss or degradation of forests, indigenous peoples lose their livelihood, which has adverse impacts on their well-being.

Indigenous lands in the Amazon are often remote from local police and government agencies. The effective delivery of public services in rural regions may require more resources and involve more public servants than in urban settings (Gribble and Preston 1993; OECD 2010), but such investments are essential to the well-being of rural populations and help ensure indigenous peoples and other local communities are not neglected or marginalized. Local police and other important government agencies must be empowered, properly resourced, and motivated to ensure they meet their roles and responsibilities. This may require local government agencies to hire additional staff, provide local officers with more training, and invest in new tools and technologies for monitoring and overseeing mining on indigenous lands (see above).

Today, in many places, however, local government agencies responsible for monitoring mining, protecting forests, and supporting indigenous peoples are ill-equipped to ensure local and national laws are effectively implemented and enforced. Rather than build local capacity to improve performance, the budgets of crucial agencies in some countries have been slashed and senior staff furloughed or let go. Such actions further weaken agency capacity to ensure compliance with mining regulations, while emboldening those involved in illegal actions.

In addition to improving law enforcement, Amazonian governments—and consumer country governments—can address the demand of gold and other minerals that are illegally mined by establishing certification systems. Such schemes can promote actions by miners that protect forests and respect indigenous peoples. The efforts could build on the successes of initiatives designed to ensure other goods and products are responsibly sourced, such as conflict-free diamonds, certified wood and paper products from responsibly managed forests, and responsible soy production.

Governments can work with public and independent organizations to identify an appropriate existing set of standards or establish a new set for responsible mining in the Amazon and build a chain of custody certification process. In addition to the standards developed by mining companies and mining associations (Box 6.3), independent standards include the Fairmined Standard (Version 2.0) of the Alliance for Responsible Mining (for ASM) (ARM 2014), the Standard for Responsible Mining (IRMA-STD-001) of the Initiative for Responsible Mining Assurance (IRMA 2018), the Environmental Management System Standard, ISO 14001, of the International Organization for Standardization (ISO 2015), and the Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas of the Organisation for Economic Co-operation and Development (OECD 2013).

The system would track certified minerals through the extraction, processing, transformation, manufacturing, and distribution procedures. Independent auditors would then be in a position to assess production and issue certificates to mining operations that comply with the agreed-upon standards.

Consumer country governments can support the successful implementation of responsible sourcing certification schemes (Eslava 2018). They can implement an outreach and information campaign designed to educate consumers on the value of purchasing certified minerals or products that use them. They can encourage responsible mineral sourcing through their public procurement rules by requiring bids to contain certified minerals or through preferential bid evaluation. They can require publicly traded downstream companies to report whether they source certified minerals in their country’s securities and exchange commission. Consumer country governments can also support downstream companies, especially small and medium-sized enterprises (SMEs), which face implementation challenges, including understanding exact requirements, costs, lack of cooperation from suppliers, and reporting (Eslava 2018).

Start reading