A Realist Synthesis of Community Consent in Mining: The Enabling Environment for Free, Prior, and Informed Consent in Latin America

Abstract

Policy Question The policy problem this analysis seeks to understand is the context (otherwise known as the enabling environment) of Free, Prior and Informed Consent (FPIC) of Indigenous Peoples impacted by mining in Latin America. The specific policy question of interest to the client, Equitable Origin, is: How should Equitable Origin evaluate the impact of its FPIC monitoring and verification framework which seeks to promote equity and community inclusion of Indigenous communities in energy and natural resources development? By studying the enabling environment, this research parses out what aspects of FPIC are most important to evaluate, enabling EO and others to better understand how to evaluate it. Methods This research investigates the enabling factors for FPIC and similar theories of community consent, e.g., corporate social responsibility, social license to operate, and community participatory practices in the context of mining. The geographic focus of this analysis is Latin America because the client’s work is based predominantly in Latin America and the mining industry faces significant challenges with community consent there. This study uses the realist synthesis (RS) methodology to analyze case studies. RS is similar to a systematic review but balances quantitative and qualitative methods, focusing on the underlying theories. The main objective of RS is to understand the key contextual factors that affect the outcomes of the initiatives studied, what works for whom, in what circumstances, in what respects, and how (Pawson 2005). The case studies were sorted by the most relevant program theory and further analyzed for prominent contextual factors of their successes and limitations. The policy recommendations are based on 24 studies, analyzed by the contextual factors and program theories for community participation. Findings The case studies of community consent fell into three program theory categories used to enable mining projects in Latin America: 1. FPIC/rights-based approaches, 2. corporate social responsibility, and 3. community participation. Throughout the three different program theories, several key contextual factors stood out: governance, corporate culture toward FPIC, power and information asymmetries, transparency, benefit-sharing, and environmental concerns. Many of the studies, regardless of program theory, advocate for clarity and legitimation of the processes for community consent. FPIC/rights-based approaches, in particular, emphasize the need for the legitimation of IP and international human rights. CSR and community participation demonstrate the lack of clear requirements for all parties working in IP territories. Without clear rules, regulations, processes, and arbitrators, FPIC is undermined, and conflict arises. Corporate culture was also found to be an essential enabling factor. Companies with intentional, inclusive development processes led successful projects when they were flexible and attentive to the effect of specific social policies on company-community relations. Concerns over benefit-sharing were found to impede project implementation in all three theories. Problems of benefit-sharing are derived from various contextual factors, but creative, iv appropriate, and culturally sound responses to benefit-sharing concerns often lead to mutuallybeneficial company-community agreements. Finally, lack of information was a recurring, limiting feature and is related to trust. The concerns about information relate to both what information is available to whom and whether information collected by third parties can be trusted. The following contextual factors matter for effectiveness of community participation: 1. All actors benefit from governments taking an active role in the FPIC process because: a. Clear, concise indigenous and human rights laws as well as mining laws enable both communities and companies to manage and fulfill expectations and eventually reach agreements b. When governments are a neutral third party, they can, in principle, level power and information asymmetries as well as promote social cohesion. Frequently, however, they are perceived to be industry allies, and therefore not trusted c. Clear, enforceable environmental regulations and requirements will aid companies and communities in fulfilling environmental obligations 2. FPIC should be incorporated into every stage of mining development. Company culture toward FPIC and stakeholder theory must be normative ("why") from the start for projects to succeed. If not, FPIC and SLO are very hard to achieve 3. Trust is the essential prerequisite. It is embedded in every aspect of community consent. a. Information asymmetries can be corrected through straightforward, transparent, culturally appropriate, and equitable information sharing b. Diverse stakeholder representation can mitigate benefit and cost-sharing concerns as well as poor interpersonal relations Thus, the policy recommendation is for governments to adopt and create clear, enforceable FPIC requirements for mining projects. FPIC requirements should be compulsory at multiple stages of project development and facilitate diverse stakeholder input. Ultimately, FPIC is about Indigenous self-determination, so any enabling environment that fails to recognize that will undermine the process. Attuned to the context, stakeholders, companies, and governments can anticipate issues and solutions before mining conflicts arise. Additional analysis of FPIC Monitoring and Evaluation methods can be found in Appendix 5. The solutions vary from case to case but depend on the prior consultation and non-coerced consent of communities. In the absence of community consent, mining projects in Latin America are likely to garner community opposition and ultimately fail.