Tag Archives: dialogue

More Meaningful Consultations: A Comment on the Biden-Harris Plan for Tribal Nations

Yes, and sending a message is just the start. We need to rethink meaningful consultation (and what really makes consultation meaningful), integrate it with FPIC, and recognize the right to say no. https://t.co/qwQ4UShKzw

— Louis V. Galdieri (@lvgaldieri) November 24, 2020

The incoming administration promises to reinstate the tribal consultation mandate. More can be done to meet the standard set by the RESPECT Act and make consultations more meaningful.

Federal agencies are required to consult with Native American tribes (and with Alaska Native Corporations) on infrastructure projects — highways, dams, or railways, for instance — and on permits for mines, pipelines, and other industrial development projects when they affect tribal lands and interests. Consultation policies and practices vary from agency to agency, but in all cases these consultations are supposed to be “meaningful.” What makes them so needs to be carefully spelled out.

“To promote robust and meaningful consultation,” the Biden-Harris Plan for Tribal Nations promises to reinstate the Consultation mandate put in place by the Obama administration and “ensure that tribal consultations adopt best practices consistent with principles reflected in the RESPECT Act.” The Act in question is H.R. 2689, which languished in the House after being introduced by Representative Raul M. Grijalva of Arizona in the 115th Congress. The Act sought to establish, among other things, this Sense of Congress:

effective, meaningful consultation requires a two-way exchange of information, a willingness to listen, an attempt to understand and genuinely consider each other’s opinions, beliefs, and desired outcomes, and a seeking of agreement on how to proceed concerning the issues at hand; and consultation can be considered effective and meaningful when each party demonstrates a genuine commitment to learn, acknowledge, and respect the positions, perspectives, and concerns of the other parties.

The Act sets the bar for everyone involved. It describes meaningful consultation as deliberation among equals, a good faith undertaking to seek (but not necessarily reach) agreement together. It places more emphasis on recognizing different perspectives and positions than on reconciling them. It highlights a genuine and joint commitment to listen and develop understanding of each party and of the issues. Meaningful consultation will go well beyond mere transaction — or information exchange — to encompass learning and collaboration. Rooted in mutual respect, consultation can be both a dignifying encounter and an adventure.

The standard the RESPECT Act sets for meaningful consultation is worth reaching for right now, even if it remains to be seen whether Representative Grijalva will reintroduce the bill and whether the 117th Congress will make it law. Here are a few areas where work might begin.

Information ethics should develop with information systems.

A 2019 Government Accountability Office study of 21 Federal agencies discovered an information gap: agencies simply do not have accurate contact information for the appropriate tribal representatives. To remedy the situation, the GAO recommends that the Federal Permitting Improvement Steering Council develop a plan for establishing a central federal information system. While centralization might serve the FPISC goal of administrative efficiency, it can also raise significant issues around security and trust. Sharing control of data and data governance with tribes might help alleviate such concerns.

Information systems are already evolving to accommodate new collaboration technologies (like channel-based messaging and videoconferencing) to support consultation. Best practices still need to be identified and shared; and, just as importantly, inequities need to be addressed. As noted in the Biden-Harris plan, rural areas and reservations are disproportionately underserved by high-speed internet. It will take significant investment in broadband and 5G before new applications can be brought into the mix.

Where information technology can help consultation in other ways — with topological, geological, and archaeological reviews — other ethical considerations arise. Centering the discussion on shared data and published scientific information can help temper conversation and prevent powerful outside groups from exercising undue influence, but the model also has its limits. When scientific understanding appears to be incommensurate with tribal knowledge of the land, waters, and regional history, respectful consultation will strive to give both due consideration.

Dialogue will determine the value of information.

The text of the RESPECT Act itself could be amended to reflect its own sense of what makes consultation meaningful. The Act aims to “ensure that meaningful Tribal input is an integral part of the Federal decision-making process.” In this caption and throughout the Bill, the effect of the word “input” is to cast tribes as information sources, not full-fledged participants. Gathering or recording tribal input is only the first step at building dialogue, where information acquires meaning.

The colorless, technocratic term “input” appears to have found its way into the legislative lexicon via the Unfunded Mandates Reform Act of 1995 (Section 204), which calls upon agencies to “permit elected officers of State, local, and tribal governments…to provide meaningful and timely input.” Five years later, Executive Order 13175, still the touchstone for tribal consultation policies, moves beyond granting tribes permission to mandating “an accountable process to ensure meaningful and timely input.” This order does not, however, contemplate ways federal agencies might be accountable to their tribal counterparts, as they would be in a cooperative undertaking.

No surprise, then, that sixty-two percent of tribes surveyed by the GAO “identified concerns that agencies often do not adequately consider the tribal input they collect during consultation when making decisions about proposed infrastructure projects.” This finding appears to indicate that agencies cannot consider all by themselves the input they collect. Due consideration will take building “meaningful dialogue” — as a 2009 Presidential Memorandum on Tribal Consultation puts it — through “regular and meaningful consultation and collaboration.” It is best undertaken jointly.

Consultation still falls short of consent.

The 2007 UN Declaration of the Rights of Indigenous Peoples establishes that states “shall consult and cooperate with the indigenous peoples” to this clearly-stated end: “in order to obtain” Free, Prior, and Informed Consent. A 2010 State Department Announcement of US support for the Declaration fails to take into account the subordinating conjunction “in order to” and the purpose it unambiguously indicates, allowing only that the US understands the Declaration “to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders.” Instead of securing informed consent, as required by UNDRIP, the consultation process becomes a way of reserving discretion.

From the tribes’ perspective, as summarized in a 2017 study, consultation is merely box-checking unless undertaken with the aim of obtaining free, prior, and informed consent or at least reaching compromise. The Biden-Harris plan takes a step in this direction, promising to “uphold leasing and right-of-way regulations that strengthen tribal sovereignty and ensure tribal consent on tribal lands.” The plan makes no mention of the UN Declaration, however, and it remains to be seen how far this deference will extend.

Consent places front and center issues of self-determination, of autonomy and, in the context of government-to-government relations, sovereignty. One test of respect for self-determination comes when tribal leaders withhold consent or say “no,” as the obligation to obtain consent clearly implies the right to withhold it. Efforts to overlook or sidestep that obligation altogether are bound to diminish confidence that consultations will be appropriately heeded and outcomes will be just.

This serious shortcoming — which cries out for remedy — need not be a fatal flaw. “No” might signal a standoff or it might offer an opportunity to articulate and explore alternative plans. Good faith, constructive disagreement can test unexamined assumptions, illuminate unseen risk, and bring new interlocutors to the table. Agreeing to disagree need not mark the end of negotiation; it can indicate that parties will acknowledge differences, respect the distance they establish, and rejoin the dialogue.

Though consultations do not satisfy the human rights obligation to secure free, prior, and informed consent and do not necessarily yield agreements, they can help agencies take tribal interests into account and help tribes gain better understanding of (and some say in) decisions that affect them.

On a practical level, starting consultations early and returning to them throughout the life of a project can prevent conflict and costly delay further down the road. Just as importantly, consultation can help agencies gain much-needed perspective on emerging risks and complex problems, from economic and energy policies to food security and environmental protection. And taking steps to improve tribal consultations might also raise the bar for other public consultations, making government a little more responsive to all citizens.

Ultimately, however, consultation will be meaningful only to the extent that all parties so find it.

Update: On January 26, President Biden issued an Executive Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, reinstating the consultation mandate. The Memorandum directs agency heads to consult with tribes before developing a detailed plan of actions the agency will take in this regard and to keep the OMB apprised of progress made against the plan.

Serious Conversations, 11

Serious Conversations, 9

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A blog post by Eric Schwitzgebel and Jonathan Ellis brings me back to my preoccupation with serious conversations. The post looks at the question whether moral and philosophical reasoning is ever anything more than post-hoc rationalization, and asks whether in the long run that matters.

After considering some of the benefits that philosophical or scientific communities (or any community of inquirers or people having a conversation about what to do) might derive from letting a thousand rationalizations bloom, Schwitzgebel and Ellis write:

there’s much to be said in favor of a non-rationalizing approach to dialogue, in which one aims to frankly and honestly expose one’s real reasons. If you and I are peers, the fact that something moves me is prima facie evidence that it should move you too. In telling you what really moves me to favor P, I am inviting you into my epistemic perspective. You might learn something by charitably considering my point of view. Rationalization disrupts this cooperative enterprise. If I offer you rationalizations instead of revealing the genuine psychological grounds of my belief, I render false the first premise in your inference from “my interlocutor believes P because of reason R, so I should seriously consider whether I too ought to believe P for reason R”.

If we can’t “charitably” enter into the point of view of a second person, and are stuck with their rationalizations, we might end up like the psychopaths and zombies described by Pettit and Smith in their 1996 paper on the conversational stance (which I discussed in a previous post).

In that case, those who are unmoved by evidence and evaluations, or refuse to change their desires and actions in light of them, “are not seriously involved in the business of practical evaluation.”

In this case, we have moved from Pettit and Smith’s world of evidence and evaluations in light of norms to “psychological grounds,” and the larger point about serious involvement has taken on some new colors as well.

Still, “rationalizations disrupt [the] cooperative enterprise” of conversation, because they prevent us from taking up the second-person stance, which is the only place from which we can “seriously consider” P on the grounds an interlocutor might offer.

Austin and Asking, 2

Austin and Asking

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Ask is a verb: to ask is to do something or, usually, to do a number of things. To ask is, first and almost always, to address someone, even, I’d say, when you are wondering aloud to yourself (“what’s it all about?” or “what’s wrong with me?” or “why do I put myself through this?” If they are not simply outbursts or exclamations disguised as questions, these are often indirect and emotionally-charged ways of asking, “what am I going to do?”). To ask is to do other things as well: to inquire about something, someone or some state of affairs, to request clarification or permission, or to make a demand (as the French verb demander reminds us.)

Turning the verb into a noun — talking about “the ask” — confuses the address and runs roughshod over this whole range of human activity and human relationships that asking might involve.

Sometimes that’s deliberate. It allows people to pretend they aren’t giving an order when they are, or to present an order as an institutional requirement, to deflect questions about power and authority or just make it impossible for people to say no, as they should be able to do if you are genuinely asking them to do something. (Always take no for an answer might be another rule of asking; but I can easily think of exceptions, as when, for instance, we demand respect or claim rights. Those are obviously special cases.) There are all sorts of ways besides these in which talking about “the ask” as opposed to asking skirts questions of power, surrenders authority and takes authority from others. It’s a big drain.

I’m trying to take things in exactly the opposite direction: I want to talk about asking as an exercise of power, and the verb “ask” as an exercitive. (It seems it would be easiest to do that in cases where we are making a simple demand — e.g., “I ask that you remove your foot from mine”.)

I’m borrowing the word “exercitive” here from J.L. Austin’s How to Do Things With Words, where Austin comes very close a number of times to talking about what we do when we ask, close enough to encourage my own thinking in this direction. He makes some intriguing remarks about asking as an illocutionary act that “[invites] by convention a response or a sequel,” and in this context he differentiates asking to from asking whether you will or asking yes or no and the different responses they invite.

Unfortunately, when Austin directs his attention to the verb “ask” near the very end of his lectures, in a discussion of his dictionary “fieldwork,” he gives very little guidance.

In Lecture XII, Austin includes ask among the Expositives — verbs “used in acts of exposition involving the expounding of views, the conducting of arguments, and the clarifying of usages and references.” (Or, as he puts it elsewhere, “the expositive is the clarifying of reasons, arguments and communications.”) This is how Austin himself uses the verb “ask” throughout How To Do Things With Words: he often introduces an argument with “we may ask,” “we must ask,” “we should naturally ask,” “we are now asking,” “it may be asked at this point,” and so on. The lectures themselves can be read as an exercise in expositive asking.

Ask is one of an “enormous number” of expositives, Austin says, which “seem naturally to refer to conversational interchange.” The verb is, however, listed here all by itself as item 3a, a subset of the little group that includes inform, apprise, tell, answer, and rejoin. Why not include it with the others? It appears that ask is a special case of some kind, its own item.

Based on my reading I can’t say exactly what kind of item Austin considers it to be. I’m not sure anyone can say for certain. The text of How To Do Things With Words is reconstructed from Austin’s lecture notes, auditor’s notes and a few other sources. According to Urmson, who edited the first edition of the lectures, “there is no definite key to [this list of expositives] in the extant papers.” (I haven’t yet had a chance to look at the second edition to see if Austin’s later editors have added anything more on this point. Update 6 Feb 2015: I checked; they do not.)

There’s enough in these lectures to suggest that we need to go well beyond the confines of item 3a even to make sense of asking on Austin’s own terms. Austin readily admits that expositives might be “exercitives…as well,” if they “involve exertions of influence or exercise of power.” The distinctions aren’t sharp. Things can get fuzzy. So “asking me to” do this or that is close enough to ordering (“order” tops Austin’s list of exercitives) that it can sometimes cause confusion: “sometimes you are not ordering me”: you can’t, because you “are not in the appropriate position to do so” and don’t have “the right,” but it sounds as if you are because you are “asking me to rather impolitely.”

Consider, for example, someone who approaches you at a nightclub and says “Dance,” and another who asks, “Would you like to dance?” Both are asking you to dance, but the first sounds as if he is ordering you to dance, and he’s in no position to do that.

Bugs Bunny’s playful response subverts Yosemite Sam’s order to dance. Sam has a gun, so he can coerce a dance, but as the comedy here demonstrates, he doesn’t have the authority or intelligence to order Bugs Bunny around.

Of course things can go to the other extreme, and Austin is interested in situations like these: for example, someone who approaches you in a nightclub, clicks his heels together, bows gracefully and, upon rising, asks “Would you care to dance?” or inquires whether you might do him the honor of listing him on your programme du bal for the evening.

The things that have to be in place, the conditions that have to obtain for you to order me, are not the same as those that obtain when you are asking me or when we are having a conversation about what to do. It helps to be polite, but good manners are not all there is to it; and as we see in the example of the bowing gentleman at the nightclub — or Austin’s own example of the offended man who challenges another to a duel by saying “My seconds will call on you” — every form of courtesy has its season. Genuine respect and the authority it confers on others (and some measure of empathy as well) are the appropriate kinds of deference when it comes to asking: we are, after all, trying to share power, not just seize it.

A Reply to Dan Blondeau

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When I sat down to reply to a comment from Dan Blondeau of Eagle Mine on my Mining Renaissance post, I found that I’d written what is, essentially, a new post. So I’m running my reply here instead of in the comments thread.

Here is Dan’s comment:

Louis and others commenting here – is there any way you would support mining anywhere? I highly doubt it. Large, long-life deposits are few and far between now. Smaller projects such as Eagle, Polymet and so on are becoming the typical scale of mining. Instead of just bashing the industry and focusing on events that happened decades ago, perhaps you could take a more positive and collaborative approach to your concerns. Thank you

Here’s my reply:

I take it that by “events that happened decades ago,” you are referring to the story told in my film 1913 Massacre. That story from what you correctly characterize as a bygone era of mining first drew me to the Upper Peninsula, and it would be dishonest or disingenuous to say that it doesn’t still color my thinking. But since completing that project I’ve tried to stay focused on what’s happening in the area now.

At the same time, the unresolved past and the present are not so easily kept apart. For example, the conversation after our screening of 1913 Massacre at the DeVos Art Museum last October went almost directly and without any prompting to the new mining up around Big Bay and across the Peninsula. I believe the film resonates with people in the UP (and in other parts of the country) not just because the immigrant experience it documents is the quintessential American experience, but also because the basic questions it raises are still very much alive today.

That aside, I am not sure why you read me as “bashing the industry” here. My post focused on sloppy and hopelessly compromised journalism. I don’t think of mining as something I would “support” or not support. It would never occur to me to put it that way, and I’m not for or against mining per se. In some of my posts, especially those on Shefa Siegel’s work, I try to acknowledge mining’s crucial role in what Orwell calls “the metabolism of civilization”; and I’m trying to understand how bigger changes in the commodities markets and the global economic picture are driving the new mining around Lake Superior. But I also think it’s important to appreciate the real risks and the potential cost of copper and nickel mining operations in the Lake Superior watershed, and to question whether it really will create lasting prosperity for the UP or the Lake Superior region. Those are (for me) the big issues the new mining raises, and I think they are issues that any honest conversation about mining (or the development that mining brings) needs to take into account.

As I tried to suggest in my post, Kocazek just ignores them, and I wondered why she didn’t try to take them on – especially since she writes for a publication dedicated to water issues. And not just any publication: Circle of Blue, which was founded by J. Carl Ganter (who served as vice-chairman of the World Economic Forum Global Agenda Council on Water Security) and which has ties to – it is a “non-profit affiliate” of – the prestigious Pacific Institute.

As for taking “a more positive and collaborative approach,” I am all for it, or at least I am all for genuine collaboration. I don’t really know what a “positive…approach” would entail in this case apart from boosterism. As I say, I don’t consider myself a mining booster or a mining basher, but an observer, still (and no doubt always) an outsider, despite my many trips to the UP, exploring a place and trying my best to document what’s happening there. I’m open to having my views challenged and being shown where I am wrong or where there’s a better way to talk about or do things. (And for that reason I appreciate you taking the time to comment here.) I don’t think there can be any collaboration unless each party is willing and able to listen and – this is important – ready to yield to the other. In other words, listening goes beyond making concessions to the other in conversation: it means doing things differently in response to the other’s demands. (This is a theme I’ve been exploring in my posts on The Power of Asking, and one that I come up against over and over again when I write about mining issues.)

Am I often critical of what mining companies are doing in the UP and around Lake Superior? Sure, and I am troubled, as well, by the almost hubristic level of confidence the mining industry places in technology and engineering, even in the face of disasters like the Bingham Canyon collapse; its worrisome record on environmental and human rights issues nearly everywhere in the world mining is done; and the power and distorting influence it exerts on politicians and public debate – in the UP and elsewhere.

I still think there’s plenty of opportunity for collaboration and dialogue. If I did not, I would just call it quits; but giving up on dialogue is tantamount to giving up on people. In the area of human rights, for instance, I believe there’s still opportunity for collaboration around the Ruggie principles (despite the doubts I’ve expressed about them) and – in the Lake Superior region – around the United Nations Declaration on Indigenous Rights. Both frameworks (as well as the work done by the Lake Superior Binational Forum on Responsible Mining in the Lake Superior Basin) are decent places to start enumerating in a serious way the responsibilities and obligations that mining companies have in a region where human rights concerns and freshwater issues are intertwined.

In fact, I think genuine and ongoing collaboration on these efforts is essential, because I don’t think the mining industry can do it alone, or is the appropriate party to set the agenda here.

Drop the Mic: Rio Tinto Community Forums

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Last month, in towns around the Big Bay area of Michigan’s Upper Peninsula, global mining giant Rio Tinto held the second in its series of “community scorecard” forums. At these events, people from the communities around Rio Tinto’s Kennecott Eagle Mine project are asked to score the company on its performance in five areas: environmental performance, local hiring, safety, transparency and communication, and, finally, something the company calls “leaving more wood on the woodpile,” which is supposed to be a folksy way of talking about the company’s contributions to the development of the region.

Rio Tinto prides itself on these forums: “to our knowledge no other mining company has introduced a tool that allows the community to regularly rate their performance, which is then made public. We hope with the Eagle Mine Community Scorecard the UP continues to set new benchmarks in how modern mining works with communities.” But after reading a few accounts of the forums and watching some video clips of the meetings included on Keweenaw Now, a local blog, all I see is a lost opportunity.

Turnout at these forums has been low — about fifty people showed up for the biggest forum in Marquette, and most of them were Rio Tinto employees — so the scorecard results, which the company touts as proof of social license, will hardly stand close scrutiny. “It’s a global mining corporation’s idea of democracy,” remarked Kathleen Heideman of Save the Wild UP. “First they show slides about how great they are — then we should click to indicate our agreement. That’s meaningless.” Even when the company allowed questions and comments before the scoring period at a May 15th meeting in L’Anse, the meeting could hardly be described as an authentic community forum.

Rio Tinto may think that with these forums it’s doing something entirely new, but in reality the company is making a lot of old mistakes.

If these community forums are going to be anything more than a public relations exercise with predetermined outcomes, the current design of the forum needs to be scrapped and they need to be radically reconceived. Voices from the communities around the Eagle Mine need to be heard and heeded — to use a phrase I’ve used elsewhere (e.g., here and here) to talk about what real listening takes — and the power dynamic in these forums needs to shift. Otherwise, I don’t see much chance of the forums making the slightest difference in how the mining company operates, how it contributes to the development of the region, and whether it can ever enjoy social license to operate in the UP. Those are all things Rio Tinto claims it cares about.

In the video clips posted on Keweenaw Now, you can see how things went. Put aside, for the moment, the content of the discussion (which, despite the company’s attempt to kill the discussion by PowerPoint, is rich and provocative — a real tribute to the local citizens who did their homework and turned out for the meeting). You don’t have to know anything about the situation in the Upper Peninsula to sense that things are amiss. Focus on just one very telling detail in the video clips: who’s holding the microphone? At Rio Tinto Community Scorecard forums, the Rio Tinto people stand at the front of the room and speak into microphones. Nobody else does.

This may seem like a small detail. There are, after all, big things at stake — the integrity of the environment around Big Bay and the Salmon Trout River, the economic future of the Upper Peninsula as well as the future of life on Lake Superior. Rio Tinto’s Eagle mine opens the first phase of one of the biggest mining operations in the world — which is about to be staged around one of the biggest freshwater lakes in the world. This is a critical turning point. All around Lake Superior, things are going to change: things are already changing. Surely it can’t matter who’s standing where and whether they are holding a microphone?

I think it might.

Here’s a typical clip, where Jeffery Loman of the Keweenaw Bay Indian Community asks Rio Tinto’s Matt Johnson about the permitting process for discharging mining effluent into groundwater and surface water.

Johnson stands in front of his PowerPoint slides, holding the microphone as Loman, seated with the others in attendance, tries to engage him. At around 2:40 in the clip, when Johnson feels that the question is too technical for him to answer, he hands off to Kristen Mariuzza, Rio Tinto Eagle Project Environmental and Permitting Manager. And what does Mariuzza do? She marches to the front of the room and takes the microphone.

Mariuzza probably does this thinking that it’s the only way everybody in the room can hear her, or she’s so accustomed to presenting in a Rio Tinto corporate setting that she doesn’t know how to drop the act in other settings. Everyone can obviously hear Loman, who remains seated and addresses Johnson and Mariuzza in a normal tone of voice. It’s curious, isn’t it? Johnson and Mariuzza seem to be the only people in the room who require a microphone in order to speak and to be heard. Why do their voices need to be amplified above all others? That is, after all, what microphones do: they amplify one voice so that others are relegated to the background, or drowned out altogether. So both Johnson and Mariuzza are speaking over the community, and (I don’t choose this word lightly) dominating the discussion. The microphone sets the power dynamic of the situation.

Some of us are old enough to remember those corny Popeil TV commercials for a product called Mr. Microphone. The commercial runs through a number of different scenarios in which people use this amazing product to amplify their voices — transmitting it to a radio and broadcasting it for all to hear.

Essentially each scenario is the same: everyone finds Mr. Microphone amazing, but everyone is most amazed at the magical sound of his or her own voice coming through the radio. People around them laugh and notice, but the astonishment, the surprise, the wonder at Mr. Microphone is a deeply narcissistic pleasure. Something like that is happening here, to a lesser degree but with graver consequences. The people from Rio Tinto are amplifying — and most likely hearing — only their own voices, not the voices of others, and they are, I’d venture, deriving from that experience a false sense of satisfaction at having engaged with the local community.

What could they be doing instead? For starters, I would suggest they ditch the microphones, so that no one’s voice is amplified over all others. This won’t solve the problems being discussed, but it will increase the chances for voices from around the community to be heard. If people seated in the back of the room can’t hear what’s being said, then it can be repeated for their benefit: there’s value in repetition, as it gives everyone in the room a chance to assess again what’s being said and agree that someone’s view is being accurately communicated. Efficiency is not a virtue of real conversation.

If the Rio Tinto people are not standing at the front of the room holding a microphone, what will they do? Sit down — and not at the front of the room, where they are sure to command attention and where everyone must ultimately direct their remarks. There is no good reason not to sit in the same chairs that are comfortably accommodating the people with whom one is meeting. Again, this sounds like a minor adjustment, almost a point of etiquette, but I have seen this work wonders in classrooms deliberately designed so there is no front of the room, in corporate as well as academic settings. This way, anyone in the room can lead the conversation at any given time.

Now the room is starting to look like a face-to-face meeting — with everyone’s face at the same level and everyone seated at roughly the same distance from each other. Let’s not pretend for a moment that this will somehow put Rio Tinto on equal footing with the citizens in the room. Johnson and Mariuzza represent a multi-billion dollar global mining company with tremendous power and enormous reach in the Michigan legislature and beyond, to the highest levels of national government. In fact, Matt Johnson himself came out of Governor Jennifer Granholm’s administration to work for Rio Tinto as its local front man on the Kennecott project; Mariuzza also walked through a revolving door, out of government and into Rio Tinto. So there is a huge power disparity in the room — one that a simple conversation like this cannot bridge. But at least with these and other changes there might be a chance at conversation.

There are other steps the mining company can take if it is serious about developing these forums. Here are just a few:

Relinquish control. A credible, independent third party, someone who isn’t in Rio Tinto’s employ, should moderate and facilitate the conversation. Right now the flow of the conversation is controlled by the man with the microphone. A facilitator can help the whole group focus on issues, clarify what’s being said and ensure that people in the room are being heard.

Map the conversation. It looks as if right now there’s no way to capture what’s being said in the room and ensure that everybody agrees on what was said and that their point of view is being adequately represented. Video cameras record, but they also capture one point of view. Some sheets of white paper or a whiteboard would allow one person to track the conversation, and make it possible for anyone to stand up and edit, on the spot, what’s on them.

No more dog and pony. The PowerPoint show should be left where it belongs — back at the corporate office. It is a way to control the narrative, discouraging conversation, other points of view and other stories. If diagrams or maps are required for the conversation, then anyone in the room should be able to control the slideshow — and anyone in the room should be able to introduce slides.

These Community Scorecard forums may ultimately succeed or continue to fail, but people living around the Eagle Mine don’t need microphones or PowerPoint slides or corporate sponsors to talk about what’s happening in their communities. Towns and townships in the Upper Peninsula and communities all around Lake Superior may not have the clout of Rio Tinto or any of the other mining companies, but they have each other — and there’s great power in that, or at least there can be, no matter how much wood Rio Tinto leaves or does not leave on the woodpile.

Newmont, Nonsense and Good Faith

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I’m concerned that my earlier post about John Ruggie’s Just Business may have given the misleading impression that Newmont Mining’s troubles in Cajamarca had been resolved, or that the company’s publication of a study called Listening to the City of Cajamarca had softened local opposition to Newmont and its Minas Conga project — a $5 billion project to build one of Peru’s largest gold mines. Events of this past week were a reminder just how far apart the company and the campesinos remain, and just how much work it will take to bridge the distance between them.

Water remains the central issue in Cajamarca. Protests this week focused on the mining company’s so-called Water First plan. Water First involves draining Lake Perol, one of several alpine lakes in the region around Cajamarca, to build four reservoirs. Newmont and the Peruvian government promote Water First as a socially responsible effort to increase water capacity year round throughout the region, where water supply is now subject to seasonal variation. But Wilfredo Saavedra, President of the Environmental Defense Front of Cajamarca or Frente De Defensa Ambiental de Cajamarca, says Water First puts the needs of the mining company above the rights of local communities: “The mine needs water for its project and it’s going to give us polluted water,” he told Reuters. “We want them to leave us alone with our lakes, which are enough for us.”

By Tuesday, protesters were throwing stones at police and police responded by firing rubber bullets — or, if you follow the police account, one rubber bullet. Local groups plan to occupy Lake Perol starting June 17th. It seems things in Cajamarca are about to escalate again.

A popular assembly at Lake Perol in November, 2011. Photo credit: EFE/Paolo Aguilar

In the midst of these fresh troubles, and partly due to them, Zacks, an investment research firm, issued a note downgrading Newmont to the status of underperformer. “Newmont may continue to face headwinds due to increasing mining and non-mining costs. Moreover, its production may be affected further due to geopolitical risks.” The company’s troubles in Peru and elsewhere are starting to chip away at market reputation and shareholder value.

Newmont has tried to smooth things over. In response to the violence in Cajamarca, the company issued a statement calling for the protesters “to embrace good-faith dialogue”. That is not likely to happen anytime soon. Yesterday, Marco Arana Zegarra (who has come to know the mining company over the years) said Newmont was just “playing the victim.” Overcoming skepticism and establishing good-faith dialogue in Cajamarca is going to require much more than a short exercise in public relations.

For starters, Newmont will need to repair the damage done by Roque Benavides, CEO of Buenaventura, Newmont’s partner in the Minas Conga project. On Thursday, Benavides dismissed objections to the Water First plan, pointing out that the company has not yet begun draining Lake Perol and saying the current protests make “no sense.” This is worse than insulting: it’s saying that the protests are devoid of meaning, that they are nonsense. People’s concerns and worries, their anger and their fears, the lives and the established ways of life they are trying to protect, the myths, memories and meanings they associate with Lake Perol — all of that is meaningless and without value. Now there is gold to mine.

If “Water First” puts an Orwellian twist on the mining company’s plan to appropriate the water resources of the Cajamarca region, Benavides’ statement takes us to the other side of the looking glass, where it makes more “sense” to drain a mountain lake in order to mine gold than to live, as people have lived for centuries, around the lake, making use of its waters according to the seasons.

Benavides has been a bit of a loose cannon. He infamously said that he “hates” the idea of business having to gain social license and that “he does not understand” what social license means. The remark was widely criticized, not just because it seemed callous, but also because it is tantamount to saying that in Cajamarca, Newmont, Buenaventura and their cronies in government can do as they please. Where is the good faith in that?

It’s surprising, then, that in the current situation no one at Newmont has advised Benavides — or implored him — to remove himself from the conversation and refrain from making public remarks about the situation in Cajamarca. Good-faith dialogue is only possible if both parties have an equal chance to discover and create new, shared meaning, together. There can be no dialogue, and no good faith, if one party claims all rights to do as it wishes simply because it is mighty, and rejects the position of the other as pure nonsense, simply because it is meek.

A Model of Non-Coercive Leadership

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This morning I was humbled to discover that almost everything I have been trying to learn about non-coercive power (or what I’ve been calling The Power of Asking) Sister Mary Lou Wirtz appears already to know. Or so it seems from an interview with Sister Wirtz in the National Catholic Reporter.

Wirtz belongs to the Franciscan order, but she also serves as President of the International Union of Superiors General and is a recognized leader of the Leadership Conference of Women Religious. The Leadership Conference, which represents about 600,000 nuns and sisters around the world, has been at loggerheads with the Vatican for some time now. After an assessment that found “serious doctrinal problems” with the LCWR (a finding Pope Francis recently reaffirmed), the Vatican in April of 2012 ordered the LCWR to place itself under the authority of three bishops. Now about 800 leaders from LCWR have gathered in Rome to meet and, presumably, respond.

Wirtz characterizes the meeting as an opportunity for reflection.

The concept of power of this world, as Jesus refers to it, of our governments and all that, is so often the power of oppression or putting down people or abusing power in many different ways. What we’re trying to reflect on is ‘What is the good aspect of power?’
…when we use power in the right sense, we can influence others and that influence itself is power. We’re sometimes afraid as religious to use that word, and yet I think in the very communal way in which we go about our ministries and service, that is a power.
We have the power to influence many, many people — through what we do and through our service, without us focusing on that as an end in itself, but as through that service.
…we need to continually look at how do we use our power. Because it is something that others will view, others will see, and it’s a model for them also.

She goes on to talk about the “prayerful dialogic manner” in which the sisters are approaching their upcoming session with the representative of the Vatican. She hopes that their manner will set the tone and example.

If LCWR can truly open a dialogic stance with CDF [the Vatican’s Congregation for the Doctrine of the Faith] for instance and bring clarity because of openness on both sides of the dialogue, I think that would be wonderful. I think that’s what they’re hoping for.
I hope…we can model what true dialogue is, that we can model that in such a way that it helps those on the other side — in other words, the Vatican side — to understand what we mean by dialogue.
That it is a mutual sharing by both sides of information, of whatever is on their minds — that there can be that kind of mutual openness to hear one another. That isn’t always felt at this time.
They’re [LCWR] being slow in the process, hoping that through taking the time and patience that the possibility for better dialogue can truly unfold.

Where have they found patience and, even, hope? According to Sister Wirtz, it comes from dialogue among themselves, “struggling with questions,” and “a deep inner struggle.” That struggle is generative, to borrow a word Sister Wirtz uses when talking about the biblical story of Esther. Esther is “a very rich image” for the women leaders gathered in Rome, says Wirtz, “even though we do not bear children.” In trying to model the practice, the behavior, the attitudes that they want to see and inspire in others, they are exercising and sharing their own power and creating new possibilites for others, a new order, a new model of power itself. “We bear life,” she says, “through what we pass on to others and how we serve others.”

Postscript: According to my WordPress stats, this post gets a lot of traffic, much more than I ever imagined it would when I wrote it. The search terms that bring people here almost sound like something out of a classroom assignment — “discuss non-coercive power” “what is non-coercive power?” and so on — and I suspect some of these visitors are trying to crib an answer to an incredibly complex and difficult question. There is much more to the subject than this one example suggests. Those who are looking for more than a quick hit might want to read the posts I’ve written on asking.

Is Every Conversation Illegal? A Follow-Up on Shareholder Engagement

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