CEPMLP Annual Review 2001

MINERAL DEVELOPMENT: HOW TO PROTECT THE ENVIRONMENT THROUGH PUBLIC PARTICIPATION

by Ernesto Correa Elizade

I. Introduction

During the past 25 years, there have been important changes in the manner of assessment of economic growth, development and the environment. In this way, the concept of sustainable development is being created, which validity very few deny, at least at the conceptual level.

The recent phenomenon of globalisation, democratisation, the increasing role of "civil society", the rule of law, the human rights explosion, even technology phenomena like the internet, are all contributing to the expansion of these public rights to control private development.

The advantages of this movement are seen as improved quality of decision-making, better information, and increased legitimacy and acceptance. But disadvantages also arise, including exacerbated power imbalances, co-optation, and over-judicialisation.

Mining is an important part of many national development plans and also contributes strongly to various national economies. The challenge is therefore how to minimise and manage the social costs in line with the principle of sustainable development.

The minerals industry has already expanded international environmental law by adopting relevant guidelines, codes of conducts, best environmental management practices and international standards. In this context, some governments are trying to encourage companies to adopt sustainable development objectives, using economic instruments, voluntary initiatives and agreements. Also, leading mining companies have launched an industry-wide initiative on sustainable development, setting out some of the key challenges that the mining industry faces with respect to public participation of local communities.

Within this context and with the aim of knowing if it is possible to protect the environment through the implementation of the new techniques of environmental management in mineral development, an important question arises how to protect the environment through public participation? Towards the objective of finding an appropriate answer to this question, this study will attempt to:

Firstly, begin with a brief overview of sustainable development in mining related projects through the establishment of a good working relationship with the community where the mines operate.
Secondly, describe the public participation in order to provide a survey of the main reasons, why it is considered an essential element of sustainable development,
Thirdly, this work will try to explain the importance of the voluntary initiatives and how they could improve the environment and help achieve sustainability, and,
Finally, having clearly explained the issues through the previous sections will give some reasons why the public participation is the core of the sustainable development in mining and why it is a competent system for protecting the environment.

II. Mining and Sustainable Development

2.1. Sustainable Development concept and its application in Mining

Since mining is a global industry, due to the impact of globalisation, "...the mineral resources industry is entering a new era of legal regulation in the 21^st century. Beyond expanding national laws, mineral activities and products will be increasingly subjected to international law - multinational governmental and institutional regulations and requirements."¹

Different changes can be seen in many areas, including shifts in supply availability, consumer demand, political restructuring, economic transformations, social and cultural developments, changing public attitudes about mining and minerals, and the emergence of the new international pattern of "sustainable development"² (hereafter SD). All of which are promoting a rapid increase in the laws and regulatory frameworks governing the minerals industry throughout the world.³

The concept of SD began to evolve through the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment.⁴ It was later explicitly endorsed by the Brundtland Commission Report of 1987 and in the work of various intergovernmental conferences and organisations.⁵

In 1992, the UN Conference took place in Rio that led to the adoption of the Rio de Janeiro Declaration on Environment and Development⁶ and Agenda 21, an 800-page document embodying guidelines in the field of environment and development. The concept of SD is closely associated with the core values and normative prescriptions embodied in the Rio Declaration.

As observed by Professor Sands, four recurring elements appear to comprise the legal elements of the concept of SD⁷:

The need to preserve natural resources for the benefit of future generations;

The aim of exploiting natural resources in a manner which is ‘sustainable', or ‘prudent', or ‘rational', or ‘wise' or appropriate;

The Equitable use of natural resources. Basically, this means that a State must take into account the needs of other States;

The need to integrate environmental considerations and economic and development plans.

The question arises as to whether SD can be applied to mining activities. In this sense, to apply the principles of SD to mining means placing emphasis on the efficient extraction of mineral substances and in their industrial utilisation and development of substitutes that can replace them when they become scarce.

The relationship between mining and SD finds its greatest importance in the environmental factor. This incidence makes it increasingly more difficult to find places where extraction activities can be carried out without a corresponding demand for regard to the environment. At least to the extent that the community considers acceptable for its health, and without adversely affecting biodiversity, landscape or other aspects that form an inseparable part of the SD concept.

2.2. Sustainable Development principles relevant to Mining and Natural Resources

The basic principles that underpin virtually all the definitions of sustainability are now being applied to the mining sector. These include the principles themselves and the fact that they are in some cases at odds with the way social and economic systems currently operate.

Although there are many alternative definitions and forms of implementation SD, is possible to set the followings basic principles that have been addressed to the mining sector:⁸

Basic SD Principles

Human Needs Paramount/Satisfaction of basic human needs
Integration of Environment and Development
Intergenerational Equity/and Justice
Intra-generational Equity/and Justice

Environmental SD Principles

Keep within the Earth's Carrying Capacity
Non-exhaustion of natural Resources
Minimise the Depletion of Non-renewable Resources
The Precautionary Principle
The Polluter-Pays Principle
Eco-efficiency
Full-costing
Environmental Impact Assessment and management

Socio-political SD Principles

Public Participation in Governance/Co-operation
Multi-stakeholder Approach/Partnership
Communication and Education
Consensus Building Process
Increased Regulation
Institutional Capacity
Democratic Self-determination
Sovereignty over Resources

There is the fact that the principles of SD, and the goals they espouse, are in some cases at odds with the way social and economic systems currently operate and each country must approach SD from its own perspective.

There is no SD for mining itself, or even less so a SD of the mining in each country, but the regulating principles have inspired the need of properly caring for our planet. Also, it is possible to conclude that the best way to meet the challenge is the participation of all the sectors of the community in the reaching of concrete solutions that should be adopted for the purpose.

The probability that decisions related to the preservation of natural resources or to pollution prevention are more effective, is higher when they are taken directly at the level of the community affected, be it the region, country, administrative division or municipality, and with the participation of all concerned.⁹

These principles are fundamental premises for governments that will apply, develop and test policy and subsequent actions including, decision making, legislation, regulation and enforcement.¹⁰

III. Public Participation: an essential element of Sustainable Development

A very important factor for SD, without which the most perfect mining planning can be frustrated, is an adequate degree of participation for all those who are affected by the concrete activity in question.¹¹

Public Participation promises to be the greatest pattern shift of the 21^st century for economic development of all types – particularly so for the extractive mining, energy, and resources sectors.

Public Participation is a fundamental part of the new international norm of "sustainable development", designed to harmonise economic prosperity and environmental protection for this and succeeding generations. A recognised "human right" since the 1940s, public participation today is fast evolving into many different legal and political forms – "indigenous people's rights", "local community rights", "sustainable development agreements", "public hearings", "consultation", "right to information", "right to justice", "benefits sharing", and more. The right to be heard is a fundamental principle of public law in most of the world's legal systems, but in practice ranges from deeply ingrained in some cultures to being non-existent even prohibited in others.

According to the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters [Aarhus Convention-Article 2 paragraph 4], the "public"¹² refers to a broad group of stakeholders, including individuals and families living near the project, indigenous groups, religious groups, public sector officials, private sector companies, and Non – Governmental Organisations (hereafter NGOs) at the local, national, and international level.

These individuals or groups may be directly or indirectly affected by or otherwise have an interest in project activities.

The "participation"¹³ of these stakeholder groups refers to access to information, engagement in decision-making, and access to judicial redress.

3.1. International Context

The importance of public participation in environmental decision-making has achieved international recognition and there are a number of international initiatives, which promote community participation and consultation.¹⁴

For example:

1. Agenda 21, the Report of the United Nations Conference on Environment and Development¹⁵ contains recommendations to:

Encourage industry to adopt community right-to-know programmes on a voluntary basis (19.50c);

Encourage industry to report annually on their environmental records, as well as on their use of energy and natural resources (30.10a);

Encourage industry to adopt and report on the implementation of codes of conduct promoting best environmental practice (30.10b); and

Promote public awareness of the importance of considering environment and development in an integrated manner (18.10d).

2. The Rio Declaration on Environment and Development¹⁶ states:

"Environmental issues are best handled with the participation of all concerned citizens, at the relevant level…" (Principle 10); and

"Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment…" (Principle 17)

3. Article 30 of the Draft Declaration on the Rights of Indigenous People¹⁷ states:

"Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require that States obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources. Pursuant to agreement with the indigenous peoples concerned, just and fair compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact".

3.2. Community Role and Expectations

Today's society not only has a close interest in the environment and the impacts which industrial developments may have on the environment, but are also increasingly demanding a say in decision-making process. Greater emphasis is now being placed on communication and consultation between the developers of major industrial projects and communities who may be affected by them, with the objective to establish productive partnerships, avoiding conflict and achieving outcomes, which are beneficial to both the developer and the community.¹⁸

The community has a clear role where the public policy agenda is defined and implemented. While governments and companies are active players in influencing policy decisions that affect business, it is the community, often with the active encouragement of advocacy groups, which has emerged as the force that grants a company's licence to operate.¹⁹

In the environmental context, public participation has been recognised as a necessary ingredient in the design and implementation of norms. For example, in the Peruvian Political Constitution the public participation institution, was reinforced in the most fundamental legal terms in 1993. The public participation system establishes that the development approval process followed under the Environmental Impact Assessment (hereafter EIA) relies strongly on community consultation, "public audiences", by developers and consent authorities. Under the approval process, the community has the opportunity to examine and understand the nature of a proposed project. The community can also discover how it will affect the environment, such as heritage, flora and fauna, site rehabilitation, water management, noise, dust, and transport through the Environmental Impact Studies (hereafter EIS) the primary consultation tool.²⁰

Peru's public audience procedure is an important tool for public participation that has great potential for integrating citizens into environmental matters in key sectors in an informed and responsible manner. Also, public audiences represent an important step forward in the protection to the environment.

In the other hand, the community's expectations are greater information, involvement in the environment affairs of companies, participate in the decision-making process, and ultimately have access to an independent and impartial review process.

Firstly, the community has the right to access to information, including environmental data, planned or operational policies and measures, and other relevant documentation, subject to certain limited and explicit restrictions. An important element of the right of access to information, are the duty of institutions to inform the public of a decision to be made and their ability to participate in it. Access to information also entails informing the public of the opportunities and procedures for review of the decision of the institution.²¹

Secondly, the right to participate in the decision-making process requires that the public knows that the decision is being made and that they have a right to participate in the making of that decision. The process must also allow adequate time for the decision-makers to process the public input and incorporate it into their decision-making process.²²

Finally, the right to review by an independent body ensures that institutions implement their procedures effectively an in a way that does not undermine the right of access to information.

3.3. Community Participation Methods

"Consultation and Participation can be defined as a wider continuous process of participation of all stakeholders in the decisions taken throughout the formulation and execution of a project leading to sustainable development of the local population. Consultation is a formal part of the EIA of each project."²³ Therefore, consultation should be started prior to the licensing of the area and should be continues by the company that assumes the operation. In the other hand, the aim of the participation is to maximise community involvement in the decision-making process. So, participation involves community input in company decisions, which are often considered the legitimate domain only of the corporate managers.

3.3.1. Agreements

Good neighbour agreements are often concluded between the company and the individuals or the community who are immediately affected by a project, about specific aspects of the conduct or management of the project.

The contents of the agreement is entirely up to the community and the company to negotiate, and they can cover any matter in which the community is interested, per example:

Provision of information and data, such as environmental studies or early warnings of changes in activities at the mine;

Protocols about how the community or the project should raise issues and how the company and the community should respond to them;

Undertakings to implements change over time, such as phasing out a specific undesirable practice or cleaning up a creek.²⁴

The agreements should not constrain or compromise the community's or the company's legal rights. They can be structured with provisions for dispute resolution, community oversight mechanisms and substantive provisions, including commitments made by the community and the company.

3.3.2.Committees

Joint committees should be able to provide direct participation in decision making. They may be established to make input to the on-going activities of a project or; after approval or; commencement of operation. They can be comprised of members of the community and the company to assist in identifying issues to be investigated and to guide the preparation of particular sections of the EIS, especially for a controversial project. Also, they can be used as a forum for agreeing and making recommendations, or can be established to help the company to identify significant environmental aspects, operational targets and environmental objectives in the implementation of an EMS, such as ISO 14000 at an operating mine.²⁵

In this sense, the committee may have a valuable role in setting the environmental agenda with the company and the company can ensure that its EMS is relevant to and meets the concerns of the community as well as the company.

Joint committees should be formed with clear objectives and the constitution of protocols should be negotiated to set the framework and specify the procedures for matters such as:

Defining the role and scope of the committee;
Setting the agenda;
Providing advice to the company; and
The role of the committee in the company's organisational structure.

IV. Voluntary Initiatives

4.1. General Aspects

"While the response of the mining industry to command and control mechanisms was largely reactive over the past few decades, companies are now anxious to improve their reputation and act as a good corporate citizens".²⁶

In the public debate about multinationals and globalisation, it's all too often the mining business, which comes in for criticism. There exists a large gap in that understanding between public perceptions and the benefits the industry brings to society. For this reason a number of leading mining and mineral companies decided to see what might be done to bring about a more balanced perspective and to arrive at a clearer understanding of how the industry can help the world make the transition to more sustainable development.

The mining companies are now working to advance progress towards sustainable development by carrying out original research and fostering co-operation between business, government, local communities and international organisations. They are committed to conduct the mining and mineral procedure activities in a manner that safeguards the natural resources. In this sense, the mining industry has tended to promote corporate responsibility rather than new regulations or tougher enforcement. They have been leaders of voluntary initiatives of environmental agreements and codes of conduct where they are playing an important role to achieve environmental standards beyond what the law requires, which anticipate future regulations.

Wherever large private mining companies operate, they are working towards helping the transition to sustainable development and they are committed to implement programmes and report in terms of targets that are effective in improving environmental performance. Understanding, minimising and mitigating all environmental impacts, as well as using all resources responsibly and efficiently, continuous assessment and monitoring can help identify any aspects of an operation, which could benefit from a change or improvement. Plans for eventual decommissioning and closure are developed before construction of a project and are refined and implemented over the entire mine life, rehabilitation of land and, water disposal are the most important aspect of management to all mining operations.²⁷

Together with protecting the health and safety of employees and neighbouring communities, the principal environmental efforts are directed towards safe storage of waste rock and transport of materials or ground rock from which the valuable minerals have been extracted, as well as towards water resource management and energy conservation. Noise and dust control is important in mining operations, while managing emissions voided into the atmosphere is a priority with smelters. These aspects are of critical importance to these companies.

4.2. Current Status

Voluntary initiatives can provide business with new market opportunities while at the same time aiming at environmental protection. They can also work in the developing and developed world to unleash its creative talents and move forward. Especially, voluntary initiatives have the potential to strengthen national and international actions to mitigate climate change effects.²⁸

They have ranged from commitments by individual companies to achieve environmental targets that go beyond existing regulations, to codes of conduct adopted unilaterally at the national or international level, to agreements on environmental performance targets between a government an a company.

There are advantages in the use of voluntary initiatives for governments, NGOs and for the industry. For governments, the benefits are the promoting dialogue with the private sector and in raising industry manager's awareness of environmental issues. NGOs, also recognise the use of voluntary initiatives, especially in providing content and direction to dialogue between governments, companies and local communities in addressing environmental problems. For the industry, the benefits are in industry motivation, innovation and flexibility in meeting environmental goals, cleaner production and leading to more co-operative relationships between the industry, governments and the community.

4.3. Examples of Company Initiatives

Mining companies have implemented self-governing internal measures and become active in industry-wide moves to achieve a higher level of "self-regulation".²⁹

Some of the larger mining companies are now openly dealing with the issues of sustainability at project, operations and corporate levels, and are implementing initiatives to deal with various elements of sustainability, including: annual environmental reports, implementing community relations policies and, establishing community advisory committees.

Examples of some initiatives concerning these policies include Rio Tinto, Western Mining Corporation, BHP, Placer Dome, and others that operate around the world. They are the neighbours of communities whose stages of economic and social development, systems of government, cultures and traditions vary widely. They recognise that business can accelerate social change and accept the obligation to work with the neighbours to manage that change. They also strive to meet the expectations of the wider world concerning activities, beyond the traditional legal and profit-making considerations of business.

Rio Tinto's community policies through effective management practice ensure the protection of environment; minimise any adverse impacts in its activities and make a positive contribution to local community life, preparing and maintaining a plan for each operation in terms of management of social and environmental impacts, consultation and co-operation with local communities. Also, they have established an active partnership with local communities, as well as with regional and national governments and other affected parties, by

Seeking mutual commitment and reciprocity based on trust and openness so as to reach agreed objectives and shared involvement.

Consulting the community on its concerns, aspirations and values regarding development and operational aspects of mineral projects, recognising that there are links among environmental, social and cultural issues.³⁰

An example of such a partnership is that established with the local communities living in the vicinity of Rio Tinto's Renco mine near Rupike, Zimbabwe, where the company created an irrigation scheme from the mine's water supply source.³¹

Conclusion

Relations between mining companies and local communities have become the subject of increasing attention in recent years. One of the reasons is the general trend towards increased openness, public participation and empowerment of local communities, and the second reason is improved information and communications. This has resulted in local communities being considerably better informed about their legal rights and about standard environmental practices than in earlier times. Consequently, local communities voice their interest more clearly than before and are demanding that companies and governments take them into account.

The use of consultative mechanisms outside the formal political system, such as "public audiences", "agreements", "committees", and others, to solicit the views of local communities has been earlier and more frequent in mining countries, especially in developing countries.

In this context, Public Participation may exist an independent requirement in mining legislation around the world. Required disclosures by mining operations, and opportunities for members of the public and local governments to participate in evaluation and regulation of mining approaches, can improve the responsiveness of mining operations to local environmental and social concerns.

The availability of information on the environmental impacts of mining is critical to effective public participation and national laws must incorporate mechanisms for public participation at a variety of stages of review and regulation of mining operations.

Among a variety of mechanisms providing for public participation, Peru requires a public hearing to be held prior to approval of the environmental impact assessment for mining operations. However, the effectiveness of this mechanism may be limited because individuals are not guaranteed participation in the hearing, questions may only be posed in written format, the hearings are held only in the central headquarters of the Ministry of Energy and Mines in Lima. The authorities are not required to consider the contributions made in the hearing.

An effective public participation in environmental decision-making and enforcement is a key component of a general environmental framework law or pollution prevention strategy, and there are a number of ways public participation could be improved as a way to protect the environment. EIA laws could be implemented or revised to ensure that all those mining activities that may have a significant impact on the environment are subject to an EIA process that provides for written and oral comments from the public.

The public could also be involved at the scoping stage to help identify potential environmental impacts of concern to local communities that should be addressed in the EIA.

Finally, it is important that governments, especially in developing countries explore some mechanisms for supporting public participation, including educational programs on pollution prevention, as a strategy.

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Endnotes

¹G. Pring, J. Otto and K. Naito; Trends in International Environmental Law Affecting the Minerals Industry. 17 JERL 39 (1999) Return to text...

²Sustainable Development is defined simply in the World Commission on Environment and Development (WCED) Report as "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". Return to text...

³ See Pring, supra note 1 Return to text...

⁴ Stockholm Declaration of the United Nations Conference on the Human Environment, Jun 16, 1972, 11 I.L.M. 1416 reprinted from UN Doc. A/Conf.48/14, 1972. Return to text...

⁵ A., Boyle and D., Freestone, International Law and Sustainable Development: Past Achievements and Future Challenges. (USA, Oxford University Press, 1999) Return to text...

⁶ UN Doc. A/Conf. 151/5/Rev.1, 14 June 1992, reprinted in I.L.M. 874 (1992). Return to text...

⁷ P., Sands, Principles of International Environmental Law I: Frameworks, Standards and Implementation, (Manchester, Manchester University Press, 1995) 199 Return to text...

⁸ DJ, Shields, S.V., Solar; Challenges to Sustainable Development in the Mining Sector. 23 Industry and Environment 16-17 (UNEP/DTIE, 2000) Return to text...

⁹ L. Novoa, Sustainable Development and Its Relationship with Mining and Law, SPECIAL INSTITUTE ON MINERAL DEVELOPMENT IN AMERICA LATINA 7-1 Rocky Mountain Mineral Law Foundation ( 1997). Return to text...

¹⁰ White Paper on Environmental Management Policy for South Africa at http://www.policy.org.za/govdocs/white_papers/envir.html (visited on April 6, 2001) Return to text...

¹¹ See Novoa supra note 9. Return to text...

¹² Article 2 paragraph 4, Aarhus Convention at http://www.unece.org/env/pp/ (visited on April 5, 2001) Return to text...

¹³ Id. Return to text...

¹⁴ C. Saladin, Public Participation: An Essential Component of a Sustainable Economy, at http://www.foe.org/progressive-economy/participation.htm (visited on April 5, 2001) Return to text...

¹⁵ Report of the United Nations Conference on Environmental and Development, Rio de Janeiro, 19992, A/Conf. 151/26 Return to text...

¹⁶ Id. Return to text...

¹⁷ Draft Declaration on the Rights of Indigenous People, at http://www.hookele.com/netwarriors/dec-En.html (visited on April 25, 2001) Return to text...

¹⁸ NSW Minerals Council at http://www.nswmin.com.au/environment/publications.shtml (visited on April 23, 2001) Return to text...

¹⁹ Id. Return to text...

²⁰ M. Aldana, EIA and Public Participation: The Practice of Public Audiences in Peru's Energy and Mining Sector. http://www.ispnet.org (visited on April 12, 2001) Return to text...

²¹ See Saladin supra note 14 Return to text...

²²Id. Return to text...

²³ E. Mayorga, Mitigating the Social Impact of Oil Operations. Report on the UNEP & UNDESA Berlin Round Table on Mining and the Environment. (22-26 Nov. 1999) see also http://www.mineralresourcesforum.org
Return to text...

²⁴ See NSW Minerals Council supra note 18 Return to text...

²⁵ Id. Return to text...

²⁶ L.R., Blinker; Mining, Environment and Development. (UNCTAD documents http://www.natural-resources.org/minerals/generalforum/index.htm ) p. 23 Return to text...

²⁷ See Blinker, id. Return to text...

²⁸ B. Stigson, Business makes the case for Voluntary Initiatives. 21 Industry and Environment 1-2 (1998) Return to text...

²⁹ J. Otto, Institutional Frameworks: Process and Implementation, in Sustainable Development and the Future of Mineral Investment. (ed. J. Otto, J. Cordes) ( Paris, UNEP, 2000) Return to text...

³⁰ Rio Tinto, The way we work. Our statement of business practice. (2001) Return to text...

³¹ J. Epps, A. Brett ; Engaging Stakeholders in Sustainable Development and the Future of Mineral Investment. (ed. J. Otto and J. Cordes) ( Paris, UNEP, 2000) Return to text...

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