Forest Peoples Programme’s response to the Foreign Affairs Committee Inquiry on critical minerals (MIN0048)

Forest Peoples Programme (FPP) is a human rights organisation working with indigenous and forest peoples to secure their rights and support their self-determined priorities. FPP works alongside more than 60 partner organisations that represent indigenous peoples and forest communities across the tropical forest belt in 19 countries.

FPP supports the recognition and fulfilment of indigenous peoples’ human rights as articulated under international human rights law, including their right to self-determination; right to land, territories and resources; right to give or withhold their free, prior and informed consent to activities or policy measures that affect them; and their right to determine their own development.

Our response to this inquiry is illustrated particularly through the lens of the Democratic Republic of Congo (DRC).[1] The UK sources significant quantities of critical minerals, including cobalt, coltan (or columbite tantalite), tin, tantalum, tungsten, niobium and lithium from DRC. This response considers how the UK Government can support and require the responsible sourcing of critical minerals by UK businesses, and how the FCDO can use its Overseas Development Aid more effectively to tackle the root causes and underlying drivers of human rights violations and environmental destruction associated with mining for critical minerals.

The UK government must ensure that securing future supplies of critical minerals does not override the fundamental human rights and dignity of the people in whose lands those minerals are found, as well as those whose labour is used to extract them. We will discuss this by reference particularly to the DRC, where critical mineral exploitation is already fuelling conflict and injustice.

How can the FCDO support the responsible sourcing of the UK’s critical minerals? How can the UK work with global partners to improve environmental, social and governance performance (ESG) across the sector?   What are the potential complications/implications of insisting on traceability in supply chains?

1. Due to the well-established and longstanding links between human rights violations and mining, the UK Government must ensure that its policy approaches and initiatives in relation to critical minerals align with its international human rights law obligations, including the extraterritorial dimensions of these obligations. This includes inter alia ensuring that UK policies address human rights violations at the source of the mineral extraction where that is outside the UK, including dispossession of customary landowners such as indigenous peoples and local communities without their free, prior and informed consent. It also means that FCDO must ensure respect for and protection of human rights is central to its engagement with foreign governments in relation to critical minerals strategy (and more generally), and that a human rights-based approach is mainstreamed across its foreign policy engagement connected to this area.

2. While FPP does not deny that supply chain traceability has complications, it should be noted that the complications of traceability are arguably less in relation to mineral supply chains than for some other types of supply chains. This is because mineral supply chains tend to be much shorter, more likely to be substantially under the control from one transnational company, and amenable to greater scientific / geological verification. Given the limited amount of critical minerals, there is also much less “fungibility” in critical mineral supply chains – and also much higher initial investment costs - which reduces the likelihood that traceability requirements cause companies to flee high risk jurisdictions. Traceability in critical mineral supply chains is eminently feasible, as has been borne out for example by the EU’s conflict minerals regulation.[2]

3. In contrast, FPP wishes to highlight one of the critical impacts of non-traceability in supply chains, which is to deprive indigenous and forest peoples who are unlawfully and unjustly dispossessed of their lands of accountability or remedy from downstream purchasers of minerals, because lack of traceability obscures the buyers from those who are harmed. This is inconsistent with an approach that promotes respect for human rights, and which supports the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs), and in particular the corporate responsibility to remedy harms to which it causes or contributes.

Some specific ways in which the FCDO may support the responsible sourcing of critical minerals include to:

4. Ensure a human rights-based approach - supporting the respect and protection particularly of the rights of indigenous peoples and local communities - is central to engagement with governments of critical mineral-producing countries. This can include, for example:
1. emphasising, supporting or requiring human rights safeguards in development of national laws and policies on mineral exploitation in critical mineral-producing countries;
2. providing support specifically to strengthening corporate accountability laws in critical mineral-producing countries, to ensure better and more accessible redress for those affected by human rights violations or environmental harm;
3. supporting capacity building among these governments on good environmental, human rights and governance practices;
4. supporting effective and equal participation by civil society (including direct participation by indigenous and forest peoples) in national decision-making processes;
5. making ODA (particularly any associated with critical minerals) conditional on the respect for and protection of human rights;
6. providing, through its ODA, complementary, dedicated and direct funding for indigenous peoples in critical mineral-producing countries that can contribute towards securing land tenure, including community forests, developing culturally appropriate management plans that support livelihoods, and supporting self-determination and self-governance;
7. ensuring targeted action to support indigenous, land and human rights defenders on the ground, including by providing dedicated funding to investigate, and support remedy, where attacks to defenders occur;
8. ensuring human rights are effectively incorporated in environmental programmes aimed at offsetting impacts of critical mineral development (such as creation of conservation areas or carbon sinks);
9. taking a human-based approach to trade policy discussions related to critical minerals, and more broadly.
    
5. Support new legislation in the UK, in line with the recommendations made by the Joint Committee on Human Rights in 2017 as well as the UK’s commitments under the UNGPs, the OECD Guidelines for Multinational Enterprises (OECD Guidelines) and the UK’s wider international human rights law obligations and recommendations from treaty bodies.
1. The law should require that companies sourcing critical minerals are obliged to respect, or ensure respect in their supply chains, of human rights, including the collective and individual rights of indigenous and forest peoples;
2. Such a law should cover transnational mining businesses and businesses that refine critical minerals or produce goods using critical minerals, as well as those who finance these activities, who are domiciled or carry out business in the UK;
3. To be effective, requirements must extend along the companies’ full supply chain and such a law must consider specific and robust requirements for goods sourced from conflict or post-conflict states, such as the DRC, and incorporate a gender-responsive approach;
4. Such a law would be in line with the commitments the UK made in the G7 Communiqué (June 2022). In this, G7 countries express that they will work towards mandatory measures to halt human rights and environmental violations in transnational value and supply chains.[3]
    
6. Use the opportunity of Japan’s Presidency of the G7 in 2023 and its interest in critical minerals to discuss and commit, with other G7 governments, to a coherent regulatory framework for the mining sector in line with the international human rights standards.[4]
    

UK links to critical minerals in the DRC and beyond

7. In 2022, the UK developed a Critical Minerals Strategy to secure its supply chains for “transition minerals” required for the transition to clean energy - minerals which are also frequently located in indigenous peoples’ or local communities’ lands. Tantalum, derived from coltan, is listed in the UK’s Strategy for Critical Minerals as one that has been defined as being of “high criticality for the UK” according to its “economic vulnerability and supply risk”.[5]
    
8. Approximately 80% of the world’s supply of coltan comes from the DRC.[6] More than 30% of the world’s supply of coltan is mined in the eastern part of the DRC and the Great Lakes region.[7] In 2021, the DRC was the largest producer of coltan globally, with an estimated 700 tonnes produced.[8]
    
9. Electronic consumer products that are commonplace in the UK, such as mobile phones,[9] laptops, video cameras, computers, play stations and automotive electronics, require tantalum. This critical mineral is found in the products of some of the largest mobile phone manufacturers whose products are ubiquitous in the UK, such as Nokia, Motorola and Ericsson, as well as some of the largest computer manufacturers such as Alcatel, Dell and IBM.[10] It is also used in electric car batteries.[11] Inevitably, therefore, supply chains of UK manufacturers and retailers are linked to coltan extraction in the DRC and processing of tantalum in other parts of the world.

10. However, coltan and other critical minerals have close links to armed conflict, human rights abuses and environmental damage, in the DRC as in many other countries. Many human rights violations associated with mining are linked to the lack of secure tenure for indigenous peoples and other communities with customary collective land rights, who face dispossession, destruction of livelihoods and culture, environmental degradation and associated health and other issues, increased risks of violence (including sexual violence) among many other types of human rights violations.
     
11. For example, customary land rights in DRC receive limited recognition and protection under Congolese law, with the result that indigenous peoples and others with collective customary rights are frequently dispossessed of lands and resources without their free, prior and informed consent, and either no or grossly inadequate compensation. Even where indigenous peoples are not directly dispossessed of their lands by mining, the environmental and socio-economic impacts of these activities often have significant negative effects on their enjoyment of these rights.  The impacts of dispossession and disruption on community lives and livelihoods are significant, with Batwa and Bambuti indigenous peoples in particular frequently ending up landless and impoverished. Aside from land grabbing, severe human rights impacts include systematic sexual violence against women, the prevalent use of child labour and workers in debt-bondage.[12]
     
12. The current Mining Code in DRC contains limited (if any) requirements to respect human rights in its provisions. The government's revision of the Mining Code in 2018 focused primarily on revitalising private investment in the mining sector, mining revenues and tax rates, and tendering procedures for granting mining rights. The rights of indigenous peoples and local communities potentially affected by mining activities, as well as other environmental and social issues, did not receive the same attention.
     
13. The UK’s Critical Minerals Strategy sets out that the UK aims to “direct Overseas Development Assistance (ODA) towards helping like-minded, resource-rich countries develop critical mineral resources in a market-led way that aligns with sustainability, transparency, human rights and environmental goals, and supports our development priorities”. However, it is important to note that market goals and human rights goals are not inherently aligned. As noted above, it is important therefore that respect for and promotion of human rights is mainstreamed in its ODA focussed on critical minerals (as well as, indeed, in all ODA). 
     
14. In the context of the Congo Basin, the UK’s commitment made at COP26 towards the collective pot of $1.5 billion to support the protection and sustainable management of the Congo Basin forests between 2021 – 2025 must be spent in a human rights-respecting manner. It must ensure that support for development of critical minerals – and for environmental programmes intended to offset impacts of this development – guarantee human rights. This includes not only ensuring that laws and policies are human rights-respecting, but also supporting the direct and equitable participation of indigenous peoples and other collective customary rightsholders in decision-making processes.

15. UK’s foreign policy credibility also depends on its willingness to act at home. The UK is home to some of the world’s largest mining companies. Companies such as BHP Billiton, Anglo American plc, Xstrata plc, Vedanta Resources and Rio Tinto, whose current or past operations have been linked to human rights violations in indigenous peoples’ territories throughout the world (including in Colombia, the Philippines, South Africa, India and the United States), are headquartered in London or registered on the London Stock Exchange.[13] 
     
16. A huge volume of investment for the extractive sector is generated through London’s stock exchanges, with 145 million lots traded at the London Metals Exchange alone in 2021, equating to 15.6 trillion USD.[14]  With much of the world’s remaining mineral resources located in indigenous peoples’ territories,[15] and the extractive sector being associated with some of the most serious human rights abuses, UK-based minerals companies and investors have a profound effect on indigenous peoples’ enjoyment of their rights.[16]
     
17. The commitment made at COP26 by the UK Government and other States to support the conditions for a just transition internationally includes clear reference “to advance[ing] respect for human rights consistent with the United Nations Universal Declaration of Human Rights” in supply chains. The statement “urge[s] businesses to ensure their supply chains are free of human rights abuses, including through carrying out corporate due diligence in line with the OECD Guidelines, the UNGPs and the ILO’s Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy.”[17]

18. The UK must use its position as a global hub for metal trading through the London Metal Exchange and London stock exchanges to pioneer a just transition. Vital to this will be adopting robust binding standards, as suggested above, for human rights and environmental due diligence to ensure critical minerals used by UK businesses are responsibly sourced. [18]

ANNEX

Forest Peoples Programme’s work in the DRC linked to critical mineral exploration and exploitation:

19. FPP has worked in the Democratic Republic of Congo (DRC) since 2001. Our work with local partners has focused on securing the rights of indigenous peoples to their land, territories and resources. This has included work with communities on the ground in places where the allocation of logging, mining, oil and gas concessions or the creation of national parks has resulted in the dispossession of people from their ancestral lands as well as engagement at national level in processes such as land reform and the development of policy and legislation on forests, conservation and indigenous peoples’ rights.

20. FPP has been working with Batwa communities in eastern DRC for more than 20 years. These communities were displaced from their lands in the 1970s to make way for an extension of Kahuzi Biega National Park without consultation, consent or compensation. They have been battling ever since to have the original injustice recognised and to be able to return to and care for their lands. The exploitation of critical minerals has exacerbated and deepened the challenges they face: the trade in minerals has long been recognised as fuelling the armed conflict in eastern DRC[19] and forest-dependent communities are frequently caught in the crossfire. This has intensified in recent years.[20]

21. FPP is currently working with partners in South Kivu and Tshopo provinces to look in detail at the impact of mineral exploration and exploitation on forest communities’ human rights as well as on the environment, and particularly deforestation. This work will look at examples of small-scale artisanal mining and industrial and semi-industrial scale exploitation.
     
22. In addition to its work in DRC, FPP has worked with indigenous and forest peoples affected by mining in many other countries, including Colombia, Republic of Congo, Cameroon, Guyana, Indonesia and others.

28th February 2023