CEPMLP Internet Journal

Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources.
Edited by Donald N. Zillman, Alastair R. Lucas, and George (Rock) Pring
Oxford, New York: Oxford University Press, 2003. Pp. 710. Index

Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources is an impressive and most timely volume. I would venture to characterize the book as revolutionary in the energy and natural resource development sector. The reason this is that if public participation as promoted in the book is taken to its fullest extent it would mean a whole new approach in this field. As Zhiguo Gao, one of the contributing authors states: "There is no doubt that this new trend will pose a strategic challenge that must be taken seriously, not only by companies but also by host governments."

The general view of natural resources has changed, especially since the UN Conference on Environment and Development in Rio in 1992. Natural resources are no longer only a source of economic development, they are now recognized as part of ecological systems, with a much wider range of benefits than earlier understood. Sustainable development, development that meets the needs of the present without compromising the needs of future generations, sets the framework for this new approach. This is influencing the decision-making process with regard to natural resource development. Businesses, including several mining and energy companies, now see a broader perspective including economic, environmental, and social issue.

One of the major business voices on sustainable development issues, the World Business Council for Sustainable Development (WBCSD) is "building the business case for sustainable development" by among other things making this very book possible through its funding for the International Institute for Environmental and Development's Mining, Mineral and Sustainable Development Project (MMSD), which financially supported the conference which resulted in this book.

Human Rights in Natural Resource Development is a compilation of papers authored by the Academic Advisory Group of the International Bar Association's Section on Energy and Natural Resources Law (IBA SERL) which held a conference at Vermont Law School in 2001. It is a very practical book, not only giving the background of public participation (including access to information and justice) or as some authors call it participatory democracy, but different ways in which it is and can be applied in different countries around the globe. As it has examples of how to be more inclusive of all stakeholders in natural resource development, it will be an eye-opener for many. The fact that the contributors are listed with their e-mails is also helpful as they can be used as a source of additional information or further explanation in this field.

Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources consists of three major parts. The first part gives the background and emerging international law of public participation (chapter one) and its underlying concepts and theoretical issues (chapter two).

In chapter one, Pring and Noe explain how public participation in international law consists of three pillars - the right of access to information, the right of participation in decision-making and the right of access to justice. They give a historic perspective of public participation and introduce the existing principles and treaties in international law leading up to the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. The Aarhus Convention is "the most stunning breakthrough to date in all three aspects of public participation." Pring and Noe describe the Aarhus Convention as creating "more rights in relation to mining, energy and resources, and other forms of economic development than all previous international law put together." The Aarhus Convention implements Rio Declaration on Environment and Development Principle 10 making it binding international law. Rio Principle 10 states as follows: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

The Aarhus Convention which entered into force in 2001, is a regional international agreement open for signature by the member countries of the UN Economic Commission for Europe (UNECE) and also any other state that is a member of the United Nations, potentially giving the convention global reach. Yet, the name of the organization - UNECE - is misleading as the 55 member states of the UNECE include Canada, USA, UK, the Russian Federation, the Newly Independent States, Turkey, and Israel, in addition to Western, Central, and Eastern European states. At the time of this writing, forty states have signed the Aarhus Convention and twenty-three states are parties to the convention. Pring and Noe state that there is a clear movement toward increased public participation in laws and practice in the future, as soft law hardens into binding law [as Rio Principle 10 evolved into the Aarhus Convention] and "as governments and civil society come to accept expect public participation as a matter of good practice, normal operating procedure, and enlightened self-interest."

In chapter two, Barton examines the theoretical issues underlying public participation and opts to focus on the right to public participations in decision-making as the core of public participation, considering the other two pillars as having mainly a supportive role. Barton explains how public participation is different from other issues in international environmental law as it goes to the heart of national sovereignty, since it is a matter of a nation's legal, political, and administrative arrangements. After examining public participation in the perspective of political theory, he analyses its justifications and disadvantages, and gives an understanding of what a comparative analysis of different countries would need to focus on, including the spatial element.

In the second part of the volume Triggs addresses indigenous peoples right to participate in resource development (chapter three). Then in chapter four, Davies gives an in-depth analysis of the Aarhus Convention compared to the European Union (EU) approach on public participation. Taking into account that not all readers are familiar with the Aarhus Convention or the EU, perhaps a chapter could have been devoted solely to the Aarhus Convention first, followed by Davies chapter. Then in chapter five, Redgwell examines public participation from the perspective of biodiversity-related conventions. In the final chapter of this part of the volume, Cameron deliberates upon the proactive contractual agreements and quasi-contractual agreements the energy and mining industries have entered into with 'public participants', such as NGO, indigenous peoples, and local governments.

The third part of the book, is somewhat akin to an encyclopedia in that you can find different states or regions from all corners of the globe and learn about how they have dealt with public participation in the energy and natural resource sector. This part consists of twelve chapters, divided into different groups of states:

the developed nations,
the emerging economies, and
the developing nations.

Some contributors in this part of the book describe public participation in a broad sense, others in a narrower sense, some have taken a more comprehensive approach, others have focused on the different phases of energy and natural resource development - from the planning phase up to the operation and closure phase. Those interested in comparative natural resources law enter into a candy store with this book.

Addressing all the chapters in the last part of the volume in an appropriate manner would demand a separate article. Of all the contributions, I have chosen to zero in on Svitlana Kravchenko's chapter on public participation in the Newly Independent States (NIS), as I think it merits special attention. She focuses mostly on Belarus, Moldova, Russia and the Ukraine. Describing the NIS as largely a region of "democracy on paper", since few legal provisions have been transformed into practice, Kravchenko states that the task of replacing communism with democracy is nowhere near completion. She then appeals to the reader by stating that: "Those who have goodwill toward the peoples of the region would do well to consider what contributions they can themselves make to help make the transition [to democracy] irreversible." Kravchenko then explains that models of transparency that go beyond even the requirements of current legislation need to be created. Just as was the case in the developing countries until recently, the goal during communist rule was economic development without regard for the environment. Kravchenko explains how such activity has often shown "an ignorance of sustainable development principles."

With their clean slates, the NIS can serve as trail-blazers for other states, since they have adopted new constitutions and legislation which include public participation, among other innovative provisions. However, Kravchenko explains that some regimes continue to keep citizens from using these rights, such as one government warning a journalist who was going to give examples of violations of environmental laws at a public meeting, not to speak against her government. Inadequate enforcement and court costs also serve as barriers to public participation. On the other hand, in several NIS, legislation allows for collective citizens' environmental lawsuits, which is very advanced, even compared to many Western European states.

Kravchenko includes recommendations for change in her chapter, especially regarding access to justice, including waiving court costs, promoting environmental education, and conducting training programs for lawyers on environmental enforcement. At the end of her contribution Kravchenko includes examples of cases of public participation in different NIS. An exemplary project that took place in Ukraine included public participation from start to finish, whereas a disaster in Kyrgyzstan demonstrates how "open-society principles are struggling to take root in the country."

In this reviewer's view, perhaps the greatest contribution that this volume makes is the awareness- building of the importance of the three pillars of public participation in the energy and natural resource sector - using analysis and cases exemplifying how it has and can be done in different parts of the world, all in one handy volume. Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources with its wealth of information is clearly one of the "must consult" sources on current issues and trends in the energy and natural resource sector.

Dr. Anita M. Halvorssen
Global Legal Solutions, LLC
(added 04 May 2003)

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