European Parliament recognises importance of community consent in rush for critical materials - but leaves a glaring loophole

The European Parliament today voted overwhelmingly in favour of the Critical Raw Materials Act (CRMA).  

This Act aims to secure the strategically and economically vital raw materials needed for the green energy and digital transitions. To meet the drastic increase in demand for the materials policymakers have identified as being crucial for the EU’s future prosperity and security, the CRMA will allow accelerated permitting processes to extract them.  

The European Parliament’s proposal is a relative improvement on the European Commission’s earlier proposal, which abandoned crucial safeguards protecting nature and Indigenous Peoples’ rights.  

Before being approved, a Strategic Project under the CRMA, will need to be assessed against respect for the Free, Prior and Informed Consent (FPIC) of local Indigenous Peoples as enshrined in the UN Declaration on Indigenous rights. 

“Today’s vote is a step in the right direction, but with important caveats. Giving people the right to have a say in decisions which fundamentally affect their lives should be sacrosanct. The European Parliament has acknowledged this up to a point – and the fact that the Free, Prior and Informed Consent of Indigenous Peoples as enshrined in the UN Declaration should be taken into account before a launching a Strategic Project.  

However, its commitment to this principle is not wholehearted: Parliament has left a glaring loophole exempting companies who mine under certification schemes from having to respect FPIC. Unless this loophole is closed, it will mean that mining interests will supersede concern for human rights and the environment,”  said Perrine Fournier, trade and forests campaigner at forests and rights NGO, Fern. 

More than half of energy transition minerals projects worldwide are located on or near Indigenous and peasant peoples’ lands. Yet a 2019 study found that less than 16 per cent of European extractive and energy companies commit to providing remedies to harmed people. Booming commodity demand also often increases corruption, aggravating socio-environmental abuse and worsening inequality. 

“The EU must enforce mandatory due diligence for mining companies in order to prevent more of the social and environmental crimes that have historically tainted the extractive industry. Furthermore, we must reduce our demand for minerals, in order to decrease the pressure on the people and biodiversity hotspots sitting on these natural resources,” said Fournier. 

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_Background: 

_{Mining is one of the highest risk sectors for human rights abuses, environmental damage and pollution, conflict, and corruption. All of these consequences disproportionately impact Indigenous Peoples, local communities, women and workers, often over multiple generations.}  

_{In just the last 12 years, there have been 510 allegations of human rights abuse in mining for cobalt, copper, lithium, manganese, nickel, and zinc, including 133 attacks on human rights defenders and 49 abuses of Indigenous rights.}  

_{Many mining activities also threaten cultural and sacred sites, watersheds, and biodiversity. With demands for more mining, this situation is deteriorating. Huge swathes of forest are cleared, and soil removed in Australia, Indonesia, Brazil and Guinea to satisfy, among others, the German automotive industry’s demand for aluminium (accounting for 47 per cent of the aluminium used in 2019). Construction (14 per cent) and packaging (12 per cent) are also large consumers.} 

_{Mining for nickel – now added to the Critical Raw Materials list – has since 2011 destroyed almost 550,000 hectares of rainforest on the Indonesian island of Sulawesi, without authorisation to clear land and using forged documents, with considerable impact on local livelihoods.} 

_{The way strategic partnerships and projects are foreseen bears the risk of exacerbating human rights and Indigenous rights violations, increasing environmental risks, undermining development in third countries, and circumventing democratic participation as there is no foreseen civil society participation in third countries.} 

_{In the current text, there are a few vague references to Indigenous Peoples. Their right to FPIC as enshrined in UN Declarations and Treaties (UNDRIP, International Labour Organisation 169). The International Covenant on the Civil and Political Rights (ICCPR), and the International Covenant on Economic Social and Cultural Rights (ICESCR) could be added as they have both been interpreted in jurisprudence of UN treaty bodies to protect the right to FPIC.}  

_{The CRMA was originally proposed by the European Commission last March 2023. The Council adopted its position on 30 June 2023. The CRMA will now enter in so called ‘trilogue” – negotiations between the Commission, the European Parliament and the Council – and is supposed to be adopted by the end of 2023, early 2024.} 

_{You can find our position paper on the CRMA here; also see this letter in which a number of civil society organisations across the world call on the EU to choose a global and just transition.}

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