Human Rights Watch (HRW) charged Thursday that the US government’s decision to permit Lithium Americas to mine at Thacker Pass in Nevada violated Indigenous people’s rights by failing to obtain free, prior and informed consent (FPIC) in accordance with international law.

The 133-page report determined that the Bureau of Land Management (BLM) permitted the lithium mine without the FPIC of Numu/Nuwu and Newe peoples. In the 2021 BLM decision to approve the mining project, the agency stated it was in contact with tribal governments since 2018 and that “[n]o comments or concerns have been raised during formal government to government consultation for the project by the tribes.” HRW’s report challenges that assertion, claiming there was no meaningful consultation or FPIC, and that US courts have rebuffed any efforts by Indigenous peoples to challenge adequacy of the consultation process. The extent of the consultation, HRW alleges, was just three rounds of mailing sent to three tribal governments.

Thacker Pass contains one of the largest known lithium deposits in the world. The project sprawls over 18,000 acres of Numu/Nuwu and Newe ancestral lands and has also received state level permits, but was slowed by several lawsuits from Indigenous peoples and other advocacy groups. All of these lawsuits have failed, including a case alleging BLM did not adequately consult with Indigenous peoples as required under the National Historic Preservation Act. That act requires consultation for development projects on Indigenous lands with religious or cultural significance.

As the report notes, US law on Indigenous consultation falls well short of the FPIC standard required under international law. FPIC is a fundamental principle of international human rights law embodied in the UN Charter and International Covenant on Civil and Political Rights. But the right is most clearly defined in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which the United States has supported since 2011. Article 32 of UNDRIP states:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Thacker Pass has an important Indigenous history, being the site of a massacre committed against Nume/Nuwu and Newe by the US Union Army in 1865. The report connects those events to the current development of the lithium mine, stating: “The Thacker Pass lithium mine is both tied to violent US settler colonialism and a new era of resource exploitation.”