Inter-American Environmental Program
II. Advancing an Agenda for Pollution Prevention:
The Inter-American Mining Program
Economic integration of the Americas continues to present challenges to the development of policies for the sustainable development of regional natural resources. ELI is working with its network partners in the hemisphere to develop innovative policy solutions to pressing environmental problems at the regional, national and local level. ELI is also working directly with communities in the Andean region to help them develop their environmental, social and economic agenda, and set of tools to address the impacts of mining on their communities. ELI has also been particularly active in advancing pollution prevention policies in the region, from promoting a hemispheric agenda for pollution prevention in the mining sector to developing an innovative regulation on pollution prevention for industry in Peru. Preventing pollution is one of many requirements for effective resource conservation and prevention of biodiversity losses. ELI’s Mining Center Web page also describes the following projects in detail.
Mining and Communities Project
ELI, Sociedad Peruana de Derecho Ambiental (SPDA) based in Lima, Peru, and Oxfam America (Oxfam) launched and carried out this project to help the mining communities in Bolivia, Chile, Ecuador and Peru develop their own agenda of environmental social and economic demands and to explore potential mechanisms of control, including certification. ELI and its partners were successful in: 1) advancing an agenda of mining community demands for environmental, social, economic and civic reform; 2) building the capacity of mining communities to understand and develop and apply a range of tools to address mining impacts; and 3) strengthening networks of mining communities in the Andean region.
Although the communities as a group decided not to move forward with the creation of a regional certification system at this time, the project succeeded in identifying for each country and for the region a concrete set of demands for environmental, social, economic and civic policy reforms. These demands can form the basis of future standards and indicators in a variety of control mechanisms, ranging from certification systems to legislative initiatives. Through presentation of a series of educational modules and other materials in national workshops as well as an exchange of experiences by community leaders, the workshop participants were educated about their basic rights and the characteristics, strengths and weaknesses of a number of control mechanisms, including certification.
To assist the communities in achieving these results, ELI, SPDA and Oxfam undertook the following activities:
1. Defined the project scope and agenda at a partner meeting and with the Global Mining Campaign’s (GMC) first international meeting. In September 2001 in Washington DC representatives from ELI, SPDA and Oxfam met to refine the project goals, timetable and tasks. The partners met with Steve d’Esposito of the Mineral Policy Center for an update on the Global Mining Campaign (GMC). Later that fall, Susan Bass and Marcos Orellana from ELI and Keith Slack from Oxfam attended the first international meeting of GMC in Warrenton, Virginia. In consultation with mining community members and NGO’s working with mining communities at the GMC meeting and in subsequent meetings in Lima, Peru, the partners reached a decision to broaden the focus of the project beyond certification to include a range of potential strategies and mechanisms to insure greater community control of the negative environmental and social impacts of mining.
2. Educated leaders of mining communities in Bolivia (July), Chile (December), Ecuador (September) and Peru (May) in a series of two-day workshops in 2002. The project partners collaborated to conduct a series of local consultative workshops with: ISALP (Instituto Social de Apoyo Legal Potosí) in Bolivia; la Fundación SIGA (Salud, Infancia, Género y Ambiente) in Ecuador; la Corporación OLCA (Observatorio Latinoamericana de Conflictos Ambientales) in Chile; and CONCAMI in Peru (Comisión Nacional de Comunidades Afectadas por la Minería) in Peru. The workshops were designed to allow representatives from affected communities in each country to share experiences, discuss ideas and proposals, and based on the educational modules, to understand their basic rights and explore mechanisms for controlling the environmental and social effects of mining. Approximately 20 - 25 persons participated in each of the workshops. The workshops also aimed at discussing the advantages and disadvantages associated with certification as a mechanism of control. The overall results of these workshops were: a) to identify the strengths and weaknesses of the tools currently used by communities in that country to control the impacts of mining; b) to evaluate the potential application of a range of alternative mechanisms of control and; c) to assess the advantages and disadvantages of different models of certification in the context of mining.
3. Co-published (with SPDA and Oxfam) and disseminated a series of educational modules for the workshops. These publications, focusing on the concept, structure and function of mining certification models and the key environmental, economic, social and civil principles and rights of concern to mining communities, include: 1/2): La Certificación: Descripción, Debate y Temas para la Discusión; 3) Modelos en Actividades Extractivas; and 4) Minería y Comunidad: Principios y Derechos.
4. Informed international leaders about the project and its aims in international fora. In March 2002, Marcos Orellana discussed the initiative at the World Mining Ministries Forum in Toronto in his presentation on the issue of whether the mining industry was prepared for a sustainable development code. This event was attended by representatives of mining ministries and industry leaders from around the world. He also addressed certification issues during his presentation on access to information at the Resourcing the Future Conference in Toronto, an industry sponsored event culminating the multi-year Mining, Minerals and Sustainable Development Initiative, and at the International Gold Mining Symposium in Lima in May 2002.
5. Synthesized the results of meetings in Bolivia, Chile, Ecuador and Peru in a discussion document outlining the frameworks of potential national and regional agendas for control of mining. The discussion document reviews the principle control mechanisms currently used by the communities in the four countries, sets forth the agendas proposed by each community and outlines the elements of a potential common agenda for discussion at the regional workshop.
6. Consulted with the communities through a second series of workshops in 2003 in Bolivia (May 15), Chile (May 21), Ecuador (May 8) and Peru (June 6) to review and comment on the discussion document and finalize the agenda for the upcoming Andean regional workshop. The result of this series of workshops was to develop for each country a specific agenda of social, environmental, economic and civic demands with respect to mining. From these four national agendas, the project team was able to develop a common agenda of issues among the four countries.
7. Convened an Andean Regional Workshop in July 9-11, 2003 in Lima Peru. This intensive workshop provided an opportunity for representatives of communities affected by mining to discuss jointly and debate and develop final recommendations from Bolivia, Chile, Ecuador and Peru and to define mechanisms of control to safeguard their rights. The Andean Regional Workshop also introduced community leaders to the different accountability and advocacy tools for implementing international standards. The Mineral Policy Center also explained its global advocacy campaign. In addition, SPDA presented and disseminated copies of an ELI/SPDA joint publication, Improving Public Participation in the Environmental Impact Assessment Process in Mining (Mejorando la Participación Ciudadana en al Proceso de Evaluación de Impacto Ambiental en Minería). This publication, co-edited by Susan Bass and Wendy Sandoz, was supported by the International Development Research Centre (IDRC), Ottawa, Canada. The communities sent a strong message at the regional workshop that their first priority was to affirm and seek to have their basic rights respected and implemented. In lieu of a voluntary certification system, which the delegations continued to view as a means of co-optation rather than change, the leaders endorsed the idea of a community system of control. The key elements of such a system would include participation of the communities in monitoring and inspections, research, investigation, independent impact assessments and mapping of community natural resources and cultural sites. Individual countries also highlighted particular needs. Peru and Chile emphasized implementation of the right of prior informed consent, zoning, natural legislative campaigns, strengthening of regional and national networks and campaigns against the negative impacts of trade. The leaders from Ecuador endorsed a social awareness campaign to catalyze regulation of natural resources based on the collective rights in the Constitution. The Bolivian leaders favored strengthening local governance mechanisms, campaigns to raise public awareness about mining impacts and community control mechanisms.
8. Promoted the Concept of Prior Informed Consent. In response to concerns voiced by the local communities, ELI, in partnership with SPDA and Oxfam launched a research initiative to explore the rights of communities to veto and impose conditions on mining operations. This research led to the production and publication of Prior Informed Consent and Mining; Promoting the Sustainable Development of Local Communities, a 42-page report in English and Spanish language versions. The report draws upon analyses of nine case studies where the right of prior informed consent was a significant issue. The report concludes that formal recognition and use of prior informed consent processes are likely to continue and to expand around the globe. Designing and implementing effective community consent processes is essential to protecting community rights and interests. Prior informed consent processes are valuable tools for community groups seeking to protect their rights, for mining companies seeking to be good corporate citizens and to improve their mining operations and also for governments seeking to promote sustainable development. The report is providing critical and timely policy support for advocates of the right of prior informed consent, most recently in the context of the debate among officials at the World Bank Group (WBG) as to whether the WBG should endorse the concept in accord with the recommendations of the final report of the Extractive Industry Review. Emil Salim of the World Bank Extractive Industries Review Secretariat endorsed the report, saying: “I hope this valuable study receives the deserved attention from decisionmakers at all levels, including decisionmakers within the World Bank Group, to help them achieve true poverty alleviation and sustainable development within the context of mining, oil and gas projects that they may finance in the future.” The report, published in March 2004, is described in the March/April 2004 issue of The Environmental Forum.
Next steps. As a result of the workshop, the community leaders proposed the creation of a commission that would reflect on the project results and coordinate with ELI, Oxfam and SPDA to plan future activities. The commission would also be responsible for continuing communications among the leaders in the four countries and disseminating the information to grassroots groups. The commission would be staffed by one representative from each country.
In response to the positions and needs expressed by the communities, ELI, Oxfam and SPDA are exploring the idea of developing various legal and alternative mechanisms for securing access to information, participation in decision making and access to justice as well as participatory mapping tools and strategies for advocacy campaigns. Through a series of “train-the-trainer” workshops, the project partners will build the capacity of leaders to utilize these tools.
Promoting Public Participation in the EIA Process for Mining
ELI, in partnership with SPDA in Peru, recently completed a publication to improve formal and informal mechanisms for public participation in the environmental impact assessment (EIA) process for mining in the Americas. Available in English and Spanish versions, this report examines the laws regulating public participation in the EIA and other regulatory processes in Canada, the U.S., Mexico, Chile, and Peru and the application of these laws to specific mine sites in order to develop recommendations for improving the process. The publication was launched at a regional workshop for mining communities throughout the Andes in July 2003 in Lima, Peru. ELI prepared an overview of publication participation mechanisms in the U.S. and its partners prepared similar documents for their respective countries.
Regional Pollution Prevention Guidelines
Mining pollution can have a significant impact on human health and also contribute to habitat destruction and biodiversity loss. The Environmental Law Institute partnered with leading environmental law centers in the region to prepare suggested regional guidelines for use by national policymakers in developing effective national legislative frameworks for understanding and controlling the environmental impacts of expanded mining in the region. The project partners included Sociedad Peruana de Derecho Ambiental (SPDA) in Peru, Centro Mexican de Derecho Ambiental (CEMDA) in Mexico, Comité Nacional Pro Defensa de la Fauna y Flora (CODEFF) in Chile, Instituto Socio-Ambiental (ISA) in Brazil, Canadian Institute for Environmental Law and Policy (CIELAP) in Canada, Centro Especializa do en Derecho y Política Ambiental (CEDPA) in Bolivia and Fundación Ambiente y Recursós Naturales (FARN) in Argentina. During the first phase of the project ELI and its partners researched existing national and subnational laws and policies in their respective countries for regulating the environmental aspects of mining. These national case studies focus on different policy approaches, including economic incentives, used in these countries to promote the concept of pollution prevention as well as the development and transfer of “state of the art” pollution prevention technology and services. The national case studies also identify gaps or inadequate mechanisms in regulatory frameworks.
Based on the national case studies, ELI prepared a report describing a proposed regional framework for promoting pollution prevention - Pollution Prevention in Mining: A Proposed Framework for the Americas (2000). The framework is based on a review and analysis of the legal tools described in the national case studies. The report includes a summary description of key tools from the different studies. ELI has made the final versions of the national case studies available on the ELI Web site.
On May 3, 2002, ELI hosted a workshop in Lima, Peru on “Opportunities and Challenges for Advancing Pollution Prevention in Mining.” Attended by over 70 persons and recorded for presentation on national cable television, this event featured Keynote remarks by Carlos Loietde Mola, head of Peru’s National Environmental Council. Representatives from the mining industry, mining communities, USAID, local NGOs, and the Ministry of Mines also shared their perspective on this topic.
Global Initiatives
ELI was a key player in the global Mining, Minerals and Sustainable Development Project (MMSD) financed by the leading mining companies and carried out by the International Institute for Environment and Development (IIED) in London. Susan Bass helped prepare the charter documents for the governing bodies of the project, focusing particularly in strengthening mechanisms for public participation and oversight of the project. ELI staff participated in and contributed to numerous MMSD workshops.
In May 2002, ELI Visiting Scholar Marcos Orellana spoke in a session hosted by MMSD at the World Mines Ministries Forum in Toronto. Mr. Orellana addressed the issue of whether the mining industry was ready for sustainable development. Mr. Orellana also spoke on issues concerning access to information at the Global Mining Initiative (GMI) Conference in Toronto on May 13-15. Susan Bass also participated in this event which brought together mining industry leaders and key stakeholders to discuss the results of the MMSD conference.
On May 16, 2002, Marcos Orellana addressed the Gold Symposium in Lima, Peru on issues related to sustainable development and mining. In September 2002, Susan Bass and Steve D’Esposito of the Mineral Policy Center met with Jay Hair, head of the new international mining association, ICMM, to discuss the results of the GMI Conference and next steps.
ELI continues to work with officials from the U.S. Bureau of Land Management in developing declarations and plans of actions for the annual Mining Ministers of the Americas Conference (CAMMA). In October 2002, ELI staff met with Assistant Secretary Rebecca Watson to discuss the future role of the U.S. government in the CAMMA process and options for collaboration. ELI provided BLM with comments on preliminary final draft of the Plan of Action which is being prepared by the Committee for Sustainable Development. ELI also prepared comments on the draft CAMMA declaration for the November 2001 CAMMA meeting in Santo Domingo, including recommendations for developing a mechanism for the public to participate in the CAMMA work groups and for hosting a workshop on legal and technical pollution prevention issues. ELI staff met again with Assistant Secretary Watson in 2003 to discuss ways in which CAMMA could promote sustainable development, and in particular, implementation of the basic principles of public participation-access to information, participation in decision-making and access to justice.
In May 2002, Jim McElfish participated with U.S. NGOs in discussing legal and technical trends affecting U.S. mining industry at a meeting held in Estates Park, Colorado.
Financial Mechanisms
UNEP, MMSD, and the World Bank have joined together to explore the role of financial institutions in mining and sustainable development. Susan Bass participated in the January 2001 scoping meeting for this project in Washington, DC and the follow-up stakeholder consultation in April 2001 (also in Washington, DC).
ELI is currently developing a handbook that will assist public and private financial institutions that provide funds or guarantee loans for mining operations in promoting pollution prevention policies, practices, and technology. The handbook will highlight case studies of particular attention to operations in Latin America and the Caribbean.
To ensure that the handbook is as useful as possible, ELI conducted a preliminary round of consultations with a small group of public and private financial institutions involved in the mining sector. The consultations explored the proposed framework of the handbook, the feasibility and practicality of the proposed policies, and practices, and identified additional tools. In the process, ELI also sought to learn from lenders what policies and practices they have in place or rely on to promote pollution prevention during the financing of mining operations.
Drawing upon our own contacts and the May 2000 report for USAID prepared by SAIC and others, ELI developed an initial list of environmental officers in financial institutions that would be consulted. To date we have interviewed individuals that work specifically with environmental regulations and mining operations at Chase Bank/JP Morgan, Barclays Bank, and Citigroup, as well as contacts at the World Bank and the Inter-American Development Bank.
ELI also compiled a list of environmental and mining guidelines from global, regional, and national institutions, as well as provisions already developed by select lender institutions that could form the basis for lending criteria for pollution prevention in mining. ELI reviewed these guidelines to ascertain which might be the most relevant and useful for developing lending criteria.
The Ecoconsulta team - an ELI partner organization based in Costa Rica - helped prepare the business case for pollution prevention in the mining sector. The team developed a general strategy for reviewing existing information on best practices and a number of relevant cases, and presented information regarding the financial and “value creation” aspects of those practices. Because the overall objective of their work is to inform the financial sector of the economic benefits of pollution prevention in mining, special attention was paid to those areas of risk and opportunity most relevant to the holder of a note or loan to the financial sector. The most significant issues presented were: process efficiency, reduction of closure costs, relationships with affected communities, and the nature of the legitimacy versus legality of mining projects in developing countries.
In 2002, ELI completed a preliminary draft of the handbook. During the next stage of the project, ELI will circulate the handbook to a wider group of lending institutions to confirm the feasibility and practicality of the proposed policies and practices as well as to engage the lenders in an effort to promote broad use of the handbook across the industry. ELI has also been invited to discuss the handbook with a group of NGOs that are interested in developing a responsible mining campaign with financial institutions.
Cyanide Code
ELI has also monitored and has provided comments on a voluntary global industry code of practice for the use of cyanide in the gold mining industry. The Code was developed under the auspices of the United Nations Environment Programme and the International Council on Metals and the Environment (now the International Council on Mining and Metals).
Sustainable Minerals Roundtable
ELI participated in the initial meeting of the Sustainable Minerals Roundtable, an initiative launched by the U.S. Forest Service to develop indicators of sustainable development in the U.S. Mining Industry. Although ELI has been invited to continue in this process, constraints on funding have limited our participation. In September 2002, ELI attorneys Jim McElfish and Susan Bass met with the organizers of the initiative to express concerns over the methodology and consultative approach of the project, and to provide comments on the proposed legal indicators.
Inter-American Program Activities
Introduction
I. Mexico
II. Land and Biodiversity
III. Advancing an Agenda for Pollution Prevention
IV. Capacity-Building Initiatives
V. Promoting Public Participation
VI. Related Publications
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