Mine Development, Consultation With Indigenous Peoples and Sustainablity

Conflict over mineral development and its impacts on indigenous peoples occurs in many countries around the world. Canada, Bolivia and Peru have experienced mine development for centuries in areas where indigenous communities have been and continue to be affected by the mining industry. On a global basis the mining industry continues to face the challenge of implementing meaningful consultation programs with indigenous peoples. Many governments around the world have adopted sustainable development as a policy and one important element of sustainable development is minimizing social conflict. John Moffet and Francois Bregha (Moffet & Bregha, 1996), in their analysis of the role of law reform in promoting sustainable development, noted that stakeholder participation can reduce this type of conflict. Social conflict can result in expensive litigation and costly project delays for mine developers. Meaningful consultation with indigenous peoples in areas where mine development is proposed can be a critical factor in securing a social licence to operate. A report released by the United Nations in 2005, outlined the elements of a concept called ?free, prior informed consent? (FPIC) that promotes more sustainable development. FPIC provides that mineral exploration and mining should not proceed unless the mining company has secured the consent of the relevant indigenous group(s). This paper employs a comparative approach to evaluate the extent to which three active mining nations, Canada, Bolivia and Peru, require consultation with indigenous residents and adhere to the principle of FPIC. The comparative approach assists in the identification of those consultation elements in the legal regimes of each country that can minimize social conflict in mineral exploration and mine development and therefore contribute to more sustainable development. First, we examine the legal requirements to consult with and accommodate indigenous communities in Canada, a country with a long history of mineral development over a large geographic area that has entrenched in its Constitution the protection of indigenous peoples? rights. We then turn to an analysis of Bolivia, one of the most indigenously conscious mining jurisdictions that has followed the Canadian lead in entrenching constitutional protection for indigenous peoples. Third, the approach to consultation with indigenous peoples in Peru, a nation that has not adopted the Canadian and Bolivian approaches to constitutional protection of indigenous peoples rights, is considered.