"CMSI response to Civil Society Briefing for Automakers and other Downstream Purchasers", 10 December 2024

"The CMSI welcomes robust dialogue and feedback from all stakeholders and rightsholders as part of our commitment to developing a credible and impactful global standard for responsible mining. Recent critiques from a coalition of civil society organisations highlight concerns about the Consolidated Mining Standard Initiative’s (CMSI) draft standard, governance model, and assurance process. While we deeply value diverse perspectives, some claims in their briefing document contain factual inaccuracies or misinterpretations. In this response we aim to clarify these points and reaffirm our dedication to an open, inclusive consultation process based on accurate and objective information...

Response to key critiques:

1. Clarity and audibility of the Standard The claim that the draft Standard is too vague to provide meaningful guidance or enable effective auditing appears to misunderstand its design and intent. Key clarifications include:

• Auditable requirements: Each performance area includes an intent statement that defines the desired outcomes, supported by prescriptive requirements. This approach balances the need for prescriptiveness with the need to consider specific local circumstances in collaboration with workers and affected communities...

• Diversity of local context: The ability to take local circumstances into account is crucial to the standard’s global applicability, ensuring relevance across diverse jurisdictions and unique site conditions. For example, in Performance Area 19 on Biodiversity, foundational level requirements include: establishing biodiversity baselines in the area of influence; identifying significant aspects and assessing the risks and impacts from activities on these aspects; and developing a management plan using the mitigation hierarchy...
• Performance Area 19 on Biodiversity: At the Foundational Level, the draft Standard requires compliance with the restrictions established on Key Biodiversity Areas, Ramsar Sites and all legally protected areas. This recognises that where prohibitions are in place, they are complied with by the facility but also recognises that many protected areas enable some forms of economic activity that may include mining...
• Standard vs Guidance: The briefing suggests that the draft Standard is weak because it lacks guidance on how to implement these concepts, favouring an approach with blanket prohibitions on specific aspects like deforestation and stricter no-go zones, including Key Biodiversity Areas, Ramsar Sites and others. We believe that Standards can not and should not substitute for guidance...
• Lifecycle coverage: The draft Standard applies throughout a mine’s lifecycle, with requirements that address both current operations and long-term impacts...

2. Alignment with international laws, principles, and guidance that protect the rights of Indigenous Peoples...The draft Standard seeks to closely align with international human rights and Indigenous Peoples’ rights frameworks ...

The briefing suggests that the draft Standard does not conform with internationally recognised laws and norms that protect and respect human rights and the rights of Indigenous Peoples, with a focus on the principle of Free, Prior and Informed Consent (FPIC)...

Key clarifications are:

• Performance Area 14 on Indigenous Peoples begins, at the Foundational Level, with a requirement to publicly commit to respecting Indigenous Peoples’ rights in line with UNDRIP, which is an advanced and comprehensive international instrument that establishes the basis for FPIC in international law.
• This Performance Area then requires facilities to establish engagement and decision-making processes with Indigenous Peoples, carry out due diligence and, in accordance with the principles of FPIC, obtain agreement with Indigenous Peoples demonstrating their consent. There are further requirements to maintain and monitor the implementation of the terms of such agreements with Indigenous Peoples. This approach enables Indigenous Peoples to express their consent over anticipated impacts to their land or other rights in terms that are acceptable to them....
• The provision in this Performance Area that the briefing questions regarding circumstances where agreement is not obtained with all Indigenous Peoples reflects established interpretations of FPIC (e.g. UNDRIP) that it is not an unequivocal veto and recognises that where there are multiple communities in question, there may be differences between those communities. In these circumstances, the facility must establish processes to navigate these differences.
• The briefing also questions the resettlement requirements of the draft Standard, which are included in Performance Area 4. These requirements directly reference the IFC Performance Standard 5 on Land Acquisition and Involuntary Resettlement, and IFC Performance Standard 7 on Indigenous Peoples and require implementation of these standards in order to achieve good practice...

3. Alignment with widely accepted international standards already used by industry The assertion that the draft Standard does not align with several internationally accepted standards is too general and, in this form, not accurate. The draft Standard intends to align with internationally accepted standards and has directly incorporated or referenced key frameworks throughout. Examples are:

• Extractive Industries Transparency Initiative (EITI) in Performance Area 1.3 (Transparency of Mineral Revenues). Page 4 of 8 • International Finance Corporation’s (IFC) Performance Standards – While the IFC standards have not been referenced across the board, where they do define the established norm, such as resettlement (discussed above) the Performance Standards have been directly incorporated as requirements.

• International Labour Organisation Conventions (ILO) are integral to the requirements set out in Performance Area 6 (Child Labour and Modern Slavery), Performance Area 7 (Rights of Workers), and Performance Area 9 (Safe, Healthy and Respectful Workplaces).
• Free, Prior, and Informed Consent (FPIC) and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) – there is a requirement at the Foundational Level of Performance Area 14 to commit to respecting Indigenous Rights in line with UNDRIP, and requirements related to FPIC....
• UN Guiding Principles on Business and Human Rights (UNGPs) are the cornerstone of Performance Area 5 (Human Rights) and Performance Area 17 (Grievance Management) and are reflected in several other performance areas.
• Voluntary Principles on Security and Human Rights are core to Performance Area 11 (Security Management)...

1. Government-backed international human rights due diligence principles and guidance that promote responsible business conduct in supply chains. The briefing focuses on three key concerns: 1) fulfilling EU regulations; 2) alignment with the UNGPs; and 3) alignment with the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (OECD Guidelines). Each point is addressed below:

• Fulfillment of EU regulations: The draft Standard is not a due diligence standard itself but seeks to ensure that facilities implementing it are able to demonstrate responsible practices across all issue areas covered by the Corporate Sustainability Due Diligence Directive (CSDDD), supporting due diligence of downstream actors...
• Alignment with OECD Guidelines: The briefing correctly notes that Performance Area 3 (Responsible Supply Chains) is not OECD-aligned. However, this is intentional rather than an oversight. The CMSI does not seek to duplicate existing OECD-aligned standards but rather complement these existing systems. This is why Performance Area 3 requires facilities that are engaged in, or plan to engage in, sourcing and processing of minerals or metals to implement (and be audited against) an OECD-aligned standard to reach Good Practice level...

•Alignment with the UNGPs: The assertion that the draft Standard does not align with the UNGPs is too general and, in this form, incorrect. Performance Area 5 (Human Rights) begins with a requirement to publicly commit to respecting human rights consistent with the UNGPs at the Foundational Level; and the Good Practice Level requires the facility to establish and implement due diligence processes consistent with the UNGPs within the companies’ own activities and within the supply chain and network of business partners...

5. Assurance independence and credibility

The briefing accurately quotes the CMSI Assurance Framework as providing an opportunity for facilities to make the assurance provider aware of “any sensitivities with a particular interviewee and/or operating context to provide relevant background information”. However, it overlooks key aspects of the process that safeguard its independence and rigor....Other points of clarification include:

• Selection of interviewees: The assurance provider is not required to share their list of interviewees with the facility in advance. Rather, it requires the facility to provide the assurance provider with a list of stakeholders as a starting point, enabling the assurance provider to independently validate and augment the list to ensure they have a complete understanding of the range of stakeholders. The assurance provider is further required to consider a variety of additional inputs to inform their engagement, including the selection of interviewees....

• Stakeholder outreach: The critique accurately highlights that facilities are further encouraged to “conduct outreach to the potential interviewees in advance to make introductions with the aim of increasing the likelihood of gaining the consent and cooperation of the interviewee to participate”. This is an encouragement, not a requirement and while there are some regions where, in a low trust environment, this approach may discourage participation, in other areas where stakeholders suffer from stakeholder fatigue or are distrustful of people they don’t know, this may result in a better response rate....
• Mitigating conflicts of interest: The suggestion that allowing the facility to choose and pay their own assurance provider creates a conflict of interest overlooks safeguards embedded in the CMSI process. Facilities will be required to choose from a registry of accredited assurance providers managed by the evolved Copper Mark, similar to the model used by IRMA.
• Financial arrangements: The financial structure, where facilities directly fund the assurance process, aligns with established practices in other respected standards. The model is accompanied by quality oversight by the Secretariat (itself governed by an independent, diverse Board of Directors as proposed in the governance model) as well as by the requirements for accreditation for Assurance Providers which currently include the requirement to demonstrate the ability to manage any conflicts of interest.

8. Incentives for continuous improvement

The critique suggesting that the CMSI lacks incentives to encourage companies to move beyond Good Practice... We acknowledge that further development of recognition thresholds is a priority and appreciate feedback on this. Importantly, the framework already includes strong incentives to promote progress, as outlined below:

• Transparency as a driver for improvement: Transparency is a corner stone of the CMSI, and one of several incentive mechanisms to drive improvement...

• Effectiveness of multi-level standards: The architecture of the multiple levels of performance in the standard is based on the experience of TSM which, over its 20-year existence has demonstrated the power of a standard based on multiple levels of performance to drive quantifiable and meaningful improvement across an industry and within companies and facilities....

• Voluntary standards with accountability mechanisms: While the CMSI is a voluntary standard and not a regulatory body, its assurance process incorporates mechanisms to enforce compliance....

Next Steps

Once the public consultation has closed on 16 December, the next steps will be to consolidate all the feedback into a consultation report, summarising the input received. With consent of the contributors, we will also disclose individual responses submitted through the consultation portal. Members of the Stakeholder and Industry Advisory Groups will then collaborate to review the feedback and refine the next iteration of the Standard and oversight system. This revised version will then be shared for a second round of public consultation in 2025...."

The full response from CMSI has been attached to this article.