This story is published through the Indigenous News Alliance.

In mid-April, the Trump administration cleared the way for a controversial copper mine proposed for western Arizona. The mine would destroy parts of Chi’chil Biłdagoteel — known as “Oak Flat” in English — over the objections of the San Carlos Apache Tribe and at least 21 other tribal nations. The administration then fast-tracked the project to fulfill President Donald Trump’s goal of more aggressively developing domestic minerals such as copper and gold, which are essential for renewable energy technologies. Nine other mining projects were also fast-tracked, seven of them located in the Western U.S.

The mine, which is operated by Resolution Copper, is a joint venture between the Australia-based mining company BHP and Rio Tinto, a British-Australian multinational. Both companies have previously destroyed or threatened Aboriginal cultural sites in Australia, and both belong to the International Council on Mining and Metals (ICMM), a pro-mining organization. (Rio Tinto and BHP did not respond to requests for comment.) 

The ICMM made an appearance last week at the United Nations Permanent Forum on Indigenous Issues in New York City, the world’s largest annual gathering of Indigenous peoples, to stress their commitment to respecting Indigenous rights and obtaining the consent of Indigenous communities before mining.

An estimated 50% to 80% of the minerals that are critical to the renewable energy transition are located on or near Indigenous lands globally. “This does not give the industry license to mine at any cost,” said Haajarah Ahmed, senior manager at ICMM, which represents a third of global mining companies, on April 23.

Ahmed highlighted ICMM’s recently updated guidelines, which advise member companies such as Rio Tinto and BHP to engage with Indigenous people at the beginning of a project and to respect their rights and emphasize “the importance of reaching an agreement through a process that recognizes free, prior and informed consent.”

But the guidelines contrast bleakly with the reality on the ground. In the U.S., current laws and policies remain weak when it comes to tribal nations’ efforts to protect their ancestral lands and sacred sites off-reservation, far from international standards regarding how corporations and governments should address Indigenous concerns about projects that affect them.

In Canada, the courts have affirmed that the government has a duty to consult Indigenous communities on projects that might adversely impact their treaty rights. Nonetheless, many projects continue to move forward, including developments in Ontario’s Ring of Fire region and in Secwépemc territories in British Columbia.

Meanwhile, in the U.S., a case challenging the legality of the Resolution Copper mine is pending in the Supreme Court, which will consider whether the destruction of Chi’chil Biłdagoteel would violate Apache religious rights. The decision could impact other tribes’ efforts to preserve sacred sites outside their reservation borders.

“The U.S. government is rushing to give away our spiritual home before the courts can even rule — just like it’s rushed to erase Native people for generations,” said Wendsler Nosie Sr. of Apache Stronghold, the organization behind the lawsuit, which is made up of Apache and other Indigenous people and their allies. “This is the same violent pattern we have seen for centuries.”

Other mining projects fast-tracked by the administration last week have generated opposition from tribal nations. The Nez Perce Tribe is concerned that the proposed Stibnite Mine in Idaho could harm fishing and hunting rights, and the Fort McDermitt Tribe has long fought a proposed lithium mine on Thacker Pass in Nevada which would be built on a sacred site where U.S. cavalry troops massacred Indigenous people in 1865. All these concerns are matters that the U.N. Declaration on the Rights of Indigenous Peoples has said must be addressed. 

According to a study published in February by the U.N. Permanent Forum on Indigenous Issues,  “the absence or weakness of legal frameworks that protect the particular rights of Indigenous Peoples in the context of a global energy transition” is a “major concern.” This lack of legal protection, they wrote, means that the mining companies have the responsibility to obtain the free, prior and informed consent of Indigenous people, regardless of legal gaps.

A shift in corporate and industry policy towards consent could push governments to adopt consent in their own law and policy, said Kristen Carpenter, a law professor at CU Boulder. “It’s promising to see companies and industry groups adopt FPIC-based policies and guidelines,” said Carpenter, a past appointee to the Expert Mechanism on the Rights of Indigenous Peoples, which helps governments implement UNDRIP. “Increasingly it seems that private actors have come to see FPIC as a risk mitigation tool, realizing that working toward agreement with Indigenous Peoples is likely to avoid objections, lawsuits, and protests that arise when projects violate Indigenous Peoples’ rights.”

While voluntary guidelines advocated for by organizations like the ICMM have the potential to move faster than law and policy, they aren’t legally enforceable and can be created, or ignored, by industry, meaning they can’t be a stand-alone substitute.

“We do not seek to replace state obligations, but we can help fill accountability gaps when states fall short,” said Scott Sellwood, who represented the Initiative for Responsible Mining Assurance, or IRMA, at the forum. IRMA — which includes nonprofits, organized labor, mining companies and “affected communities” —  also has voluntary mining standards, but its members are audited by a third party and the reports are published publicly to ensure that they are following the standards. “To do this effectively, voluntary mining standards should at minimum require mines to demonstrate that they have obtained (free, prior, and informed consent) from all affected Indigenous peoples.”