Answered! Human rights is an important consideration in many facets of the mining industry. Assume you are part…

Human rights is an important consideration in many facets of the mining industry. Assume you are part of the ethics committee for research and development. Discuss the various stakeholder groups and your concerns with each as they relate to human rights and technology in the mining industry. Can I please get the in-text citation and reference with the work?

Expert Answer

 3. LAND RIGHTS, LAND OWNERSHIP AND INDIGENOUS ISSUES

3.1 Resettlement

PRINCIPLES:

Companies should not forcibly remove or be a party to others who want to remove indigenous people from their land or territories. No relocation shall take place without free and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation.

(Article 10, UN Draft Declaration on the Rights of Indigenous Peoples, UNDRIP)

Companies should not operate any project in areas where any forced removals from land have occurred.

Companies should ensure that if the development of a mine means that people have to be moved off the mining site, then the resettlement and rehabilitation of those people, should be agreed to by the people of the affected community. Such removals should be carefully planned and implemented by the mining company, so that no affected person, group or community has their standard of living, economic, culture and social cohesion diminished as a result.

This applies equally to communities that have agreed to move (“involuntary resettlement) and to host communities at the resettlement sites.

The World Bank’s policy, contained in its Operational Directive 4.30 “Involuntary Resettlement”, states:

  • Community participation in planning and implementing resettlement should be encouraged and facilitated. Full account should be taken of alternative plans proposed by the affected people and they must be allowed to identify and determine suitable resettlement sites themselves.
  • All involuntary resettlement should be conceived and executed as development programs, with settlers provided sufficient investment resources and opportunities to share in project benefits. For example, people must be allowed sufficient lead-time to rebuild lost or damaged agricultural or other forms of livelihood at the resettlement site before being forced to move.
  • Where those being displaced have agriculture as their primary source of income and livelihood, every effort must be made to replace land with land. If suitable land is not available, non-land based strategies built around opportunities for employment or self-employment should be used.
  • Relocated people must receive legal land titles for their resettlement plots, be they house plots or agricultural land.

3.2 Royalty and compensation agreements

PRINCIPLE:

Companies should ensure that all royalties and compensation agreements are based on international best practice in terms of terms and conditions being the highest achievable by landowners for equity, participation, employment, royalties and compensation.

  • Companies would need to clearly define how they had designed and calculated their offers based on formulas derived from other mining agreements elsewhere.
  • Compensation should be determined via a process of negotiation and consultation, using community involvement mechanisms and other means.
  • Displaced persons who do not receive land should be compensated for their loses at replacement values that include full net present value and a stream of benefits into the future, and prior to the actual removal or loss. The compensation should enable them to purchase the equivalent amount of land or other income generating resources before being forced to move and suffering loss of any kind.
  • Common property resources including water, energy, fodder or grazing, should also be compensated for, as should religious and cultural sites. Likewise water resources which are polluted by mining activity should be compensated for.
  • An appeals mechanism should be put in place locally so that those who feel they have not been fairly compensated for assets lost can obtain a fair and impartial hearing. This should be primarily a process involving the claimant and the company without the involvement of government officials.
  • These are in addition to the royalty payments due to the states where the returns from mining are used for the benefit of the total population.

3.3 Traditional land rights

PRINCIPLE:

Companies must recognise indigenous people and their traditional or customary ownership of land especially where a host government does not recognise the legal status of customary land.

Customary ownership of assets including land should be given the same status as legal ownership and compensated for in the same way. The absence of legal title to land by indigenous groups should not be a bar to compensation.

  • At the earliest possible stage in a mining project, a survey should be conducted in collaboration with local communities of which individuals, groups or communities have rights to what land or other assets in the project area. Where there is uncertainty or conflicting claims within to land this should be noted and taken into account when negotiating compensation.
  • Where land is communally owned, companies must negotiate with the community as a whole and not just sympathetic leaders, even though this may involve difficulties and delays.
  • Individuals, groups or communities who have user rights under customary law, that is, the right to use the land for certain purposes or to collect certain goods from it, without actually owning it, should also be compensated if these rights are taken away.

3.4 Protocols for negotiations

PRINCIPLE:

Mining companies should develop and publish a code of practice for negotiations over exploration and mining with communities and NGOs.

This would include mechanisms for:

  • identifying landowners,
  • employment of appropriate independent consultants,
  • procedures for contacting and meeting with landowners,
  • the provision of independent technical, environmental and social advice to landowners and/or their advisers,
  • the involvement of NGOs (if desired by landowners),
  • protocols governing the point at which companies accept that negotiations should cease (after a refusal for example),
  • protocols for dealing with differences between landowners about explorations and mining,
  • financial assistance to landowners,
  • and many similar issues.

Mining company staff involved in consultations with indigenous groups should have appropriate training in cross-cultural communication issues.

3.5 Right to negotiate and veto

PRINCIPLE:

Companies must recognise that every community has a right to negotiate over the use of its land and impose a veto on development that it does not support.

This right is implicitly recognised under Article 17 of the UDHR (protection against arbitrary interference with property). In addition the Human Rights Committee has interpreted Article 27 to include the protection of “a particular way of life associated with the use of land resources”

This rights is also recognise under the International covenant on Civil and Political Rights (Article 1), as part of the right to self-determination.

3.6 Negotiations with and participation of other land owners

PRINCIPLE:

Companies must ensure that all landowners are fully involved in any negotiations concerning any minerals operations which affects or has the potential to affect them.

The rights of such landowners should be recognised as being similar to those of affected people under the (Australian) Aboriginal Land Rights (NT) Act. Under this legislation no mineral exploration or mining can take place on Aboriginal land or on registered sacred sites unless the owners or custodians have been fully consulted and have agreed to such activity. The Aboriginal Land Councils are required by law to fully involve landowners and to ensure that they have consented to any exploration or mining on their lands.

3.7 Disjunctive versus. conjunctive agreements

PRINCIPLE:

All agreements with indigenous people or other landowners should be based on the disjunctive agreement process whereby a separate agreement is required at both mining and exploration stages.

Conjunctive processes are not acceptable because land owners are being asked to agree to a mining proposal prior to being provided with the full information on the size, nature and full impact of the mine.

3.8 Small scale mining

The small-scale mining industry is a legitimate and valuable part of the minerals industry in many non-industrialised countries and a traditional provider of employment and subsistence. Its role, however, is often poorly understood, its value is under-recognised, especially when it relies for its economic competitiveness on low wages and zero environmental and occupational health and safety regulations. Statistics on such a mining industry are often not collected and definitions of the industry are usually imprecise. Because of this the industry is often technically illegal.

Often when large foreign or domestic companies seek to develop a minerals project where there is existing small-scale mining, the local miners are either forced from their land or marginalised in other ways.

3.8.1 Regulation and licensing

COMMENT:

Governments should seek to regulate and licence small-scale mining operations. This not only provides recognition and legitimacy but can provide a significant improvement in safety and proper working conditions if carried out effectively.

3.8.2 Safety standards

COMMENT:

Governments need to properly inspect and monitor small-scale mining operations to ensure acceptable working and processing conditions. Such inspection and monitoring should follow the introduction of appropriate regulation and taxation regimes.

3.8.3 Environment

COMMENT:

Small-scale mining has the ability to cause major environmental damage particularly in situations where potentially damaging pollutants such as arsenic and mercury are widely used. The Government should regulate and inspect small-scale mining, using the proceeds of taxes collected to ensure environmental protection.

3.8.4 Company obligations

PRINCIPLE:

Companies should recognise the legitimate role and rights of small-scale miners and not seek to obtain minerals leases that involve their dispossession. Where appropriate companies should negotiate agreements with small-scale miners for compensation, where such miners are prepared to relinquish their land. Where the activities of large companies adversely affect small-scale miners appropriate compensation should be paid.

4. ENVIRONMENTAL STANDARDS

Environmental standards should aim towards ever increasing international best practice. There are no international environmental agreements specifically governing how mining and other mineral industry projects should be managed. There are a variety of international agreements, which may be directly or indirectly relevant in a general sense, as well as various codes and standards promulgated by the World Bank and by the industry itself.

These include:

1. The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the London Convention).

2. The 1990 Convention for the Protection of the South Pacific Region (the South Pacific Convention) and Protocol for the Prevention of Pollution of the South Pacific by Dumping (the South Pacific Protocol)

3. The Paris Convention for the Prevention of Marine Pollution from Land Based Sources, 1974

Montreal Rules for Trans-frontier Pollution (the Paris Convention on LBS)

4. The Convention on Wetlands of International Importance (the Ramsar Convention)

5. The World Heritage Convention

6. World Bank Guidelines for Mining

7. The Convention on EIA in a trans-boundary context

8. Helsinki Rules on the Uses of Waters of International Rivers

9. The International Council on Metals and the Environment Charter, 1993

10. The Berlin Guidelines: Mining and Environment Guidelines, 1991

11. The Business Charter Sustainable Development (International Chamber of Commerce), 1991

12. Agenda 21, United Nations Conference on Environment and Development, 1992

13. United Nations Revolving Fund for Natural Resources Exploration, 1973

14. UN Convention of the Law of the Sea,

15. The Rio Declaration on Environment and Development, 1992

16. The Stockholm Declaration, 1972

COMPANIES MUST ABIDE BY THE FOLLOWING PRINCIPLES BASED ON INTERNATIONAL TREATIES OR CONVENTIONS

4.1 Baseline data establishment

PRINCIPLE:

Companies should establish baseline monitoring programs at a very early stage.

Current practice of commencing operations prior to proper collection of baseline data is not acceptable. In most cases collection of such data will need to commence at least a full year, if not longer prior to any substantial disturbance of either the social or environmental situation.

  • Guidelines should be developed for the collection of baseline data
  • Exploration should be minimum impacts
  • Communities should be involved in agreements for exploration, data collection and rehabilitation from the earliest moment
  • Companies have an obligation to ensure that communities understand the exploration program and associated activities.

4.2 Waste management, treatment and disposal

PRINCIPLE:

Companies must recognise and take action to prevent any type of ocean and/or riverine tailings disposal that is not acceptable. Companies should recognise that mineral deposits must not be developed unless tailings containment is available and acceptable, from safety and other perspectives.

In order to ensure that companies properly control wastes all mines should ideally be required to conform to a closed loop system. Where any waste, other than tailings, (eg sewage) are discharged water intakes for the mine should be located downstream of waste discharge points, so as to ensure that the company does not discharge wastes that are unacceptable for further use.

PRINCIPLE

Companies must ensure that pollution of riverine, ground-water and marine environments does not occur from waste rock dumps.

The World Bank mining guidelines provide that “Marine discharges must not have an adverse affect on the environment”. The Lihir Mine run by Rio Tinto was refused political risk insurance by the US Federal Agency, the Overseas Private Investment Corporation on the grounds that the it could not fund projects which breached the London Convention on dumping of wastes and the South Pacific Protocol.

The Basel Convention provides that “..polluters causing trans-frontier pollution should be subject to legal or statutory provisions no less severe than those which would apply for any equivalent pollution occurring within their country” and that states should “(take) all practicable steps to ensure that hazardous or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes”

The Stockholm Declaration states that “The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless must be halted”

Principle 21 of the Stockholm Declaration states “States havethe responsibility to ensure that activities..do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction”

Article 194 of the Law of the Sea requires that “States take.all measures consistent with this Convention.to prevent, reduce and control pollution of the marine environment from any source”

4.3 Areas closed to exploration and mining

PRINCIPLE:

Companies must ensure that they make a firm commitment to putting various areas off limits to both exploration and mining. These should include all world heritage listed areas, all national parks, conservation reserves, international sites (such as Ramsar sites) and most areas listed for indigenous cultural reasons. Where possible there should be buffer areas around such parks and reserves.

The World Heritage Convention and the Ramsar Convention require states to protect sites of World Heritage value and to protect Ramsar listed wetlands.

4.4 Precautionary principle

The Rio Declaration provides a relevant definition where it states that, “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation”

PRINCIPLE:

All companies should operate according to the precautionary principle, which provides that in the event of doubt about the potential impacts of an action or operation, the company should avoid taking that course of action, in particular:

Mining or exploration should only occur where a company can demonstrate that such activity will not jeopardise the long-term viability of a species, ecosystem or the health of landowners and employees

A pro-active approach to minimising risk should be adopted.

4.5 Intergenerational Equity

The Rio Declaration states “The Right to development must be fulfilled so as to equitably meet the development and environmental needs of present and future generations”

Principle:

Companies should ensure that all mining operations adhere to the principle of intergenerational equity.

If necessary resource companies must undergo a major organisational and cultural shift in the way in which they operate, in order to move towards mineral efficiency practices, including vertical integration to accommodate re-use and recycling of minerals products.

COMPANIES SHOULD ADHERE TO THE FOLLOWING PRINCIPLES AT ALL TIMES EVEN WHERE THERE MAY BE NO RELEVANT INTERNATIONAL TREATY OR OBLIGATION.

4.6 Sustainable development

PRINCIPLE:

Companies must publicly recognise that mining in its basic form of simple extraction of a non-renewable resource cannot be considered sustainable and should not be portrayed as such.

Companies wishing to move towards concepts of sustainability should provide public disclosure of steps towards achieving this including independently verified environmental reports with best practice targets.

PRINCIPLE:

Companies that are vertically integrated companies, should produce reports showing how the company is achieving recycling of metal products. Non-vertically integrated companies (ie mining companies without manufacturing/retailing arms) should demonstrate agreements with other companies which set out goals for metals recycling targets of goods produced from company minerals.

PRINCIPLE:

Companies should set goals for waste minimisation, recycling and life cycle targets for minerals/mineral products.

As discussed above, this means that where a company is not involved in manufacturing or retailing activities which would allow it so set such goals within the company, it should make agreements for such targets with companies which it supplies.

4.7 Acid Mine Drainage

PRINCIPLE

Companies should not mine high sulphide ore-bodies unless steps are in place to prevent the effects of Acid Mine Drainage (AMD).

AMD is potentially the most serious, widespread and long-lasting of all environmental impacts.

The World Bank guidelines note that “On-land disposal systems should be designed to isolate acid leachate generating material from oxidation or percolating water”

4.8 Uranium and nuclear fuel cycle

Uranium is a very poisonous mineral. All uranium that contributes to the nuclear fuel cycle or is used for military purposes ends up as radio-active waste. The problems of waste disposal have not been solved. There are serious health problems for workers who work in and communities who live near mines and nuclear installations. There is no safe level of radiation and radioactivity can not be contained. It leaves an unmistakable irreversible legacy causing mutagenic effects many of which are only just beginning to become evident. The end uses of uranium in unsafe nuclear reactors and for military purposes should also preclude uranium mining.

PRINCIPLE:

Companies should not be involved in the mining, milling or processing of uranium.

The potentially damaging environmental effects of radioactive mine wastes, and the failure to find any acceptable way to isolate those wastes from the environment over the tens of thousands of years in which they remain dangerous precludes uranium mining.

Uranium mining breaches many of the most important environmental principles such as ecologically sustainable development, the precautionary principle and intergenerational equity.

4.9 Definitions of environmental best practice

PRINCIPLE:

Companies should agree to best practice targets being defined not by companies, but by independent committees comprising scientists, other experts (eg social scientists) NGOs community representatives, and company representatives.

4.10 Rehabilitation and rehabilitation bonds

PRINCIPLE:

Companies should be required to rehabilitate land as closely as possible to its pre-mining condition.

This should include as close an approximation of prior species diversity as feasibly possible and will entail extensive baseline studies. Rehabilitation bonds should be sufficient to cover all rehabilitation costs and should also include an amount for accident remediation.

  • Rehabilitation plans should be prepared in consultation with local communities.
  • Rehabilitation should be sufficiently rigorous to restore pre-mine habitats and to support the return of including native flora and fauna to pre-mining levels.
  • Rehabilitation should restore the natural function of streams existing prior to mining taking place, including flood energy dissipation, bank building, sediment filtering, water storage and aquifer recharge.
  • Bonds should cover the full costs of in rehabilitation and ongoing monitoring and remediation
  • Prior to establishing rehabilitation goals, local NGOs should be resourced to conduct awareness programs.
  • Post mine closure land use should be agreed on with communities prior to exploration and/or mining occurring.
  • Reclamation should occur in parallel with mining not at the end of mining.
  • Where mining has taken place on land that has been used or degraded by some other human activity (eg farming) it may actually be desirable to rehabilitate a mine to other than its previous use. For example for forestry or some other sustainable use.

4.11 Social value of minerals

PRINCIPLE:

Companies should include in their assessment of investment options the social usefulness of minerals to be extracted.

For example, some consideration needs to be given to the social usefulness of minerals such as gold and diamonds. It is arguable that since these minerals are mainly used for decorative purposes (such as jewelry) or can be produced artificially, they have less social value than minerals with wider social and industrial applications (eg iron, copper). Against this the cultural role of minerals such as gold in India, for example, needs to be taken into account.

In addition the social value should be evaluated against the environmental impacts of mining processes. Gold mining, for example, produces much larger volumes of waste than most other mineral extraction and also uses toxic materials such as cyanide and mercury.

Proposals to mine minerals which have major global impacts (eg global warming) such as coal and other hydrocarbons should be subject to a full assessment of available alternatives prior to any consent being given for a project to proceed. Simply assessing these minerals on the basis of local impact is not acceptable.

4.12 Transport and trade

PRINCIPLE:

Companies should identify mechanisms by which all the environmental and social costs involved in transport and trade operations can be avoided or minimised.

The transport and trade in minerals involves high environmental and social costs. These include energy costs and oil spills.

4.13 Polluter pays

PRINCIPLE:

Companies should ensure that all environmental costs involved in mining, milling, transport and processing of minerals should be borne by the company as polluter/generator and should include these costs as part of their feasibility assessment. These should include all external costs such as impacts on recreational values or tourism, costs of remediating accidents and other associated social costs. Advance compensation agreements should be negotiated, where appropriate. Full costs of rehabilitation and ongoing monitoring should be borne by the developer.

4.14 Continuous environmental improvement

PRINCIPLE:

Companies should operate under the concept of continuous environmental improvement. This concept provides for continual annual review of environmental targets. Community groups should be involved in setting these targets at all levels.

The process of review and target setting must be transparent and independent

Performance targets should be quantifiable wherever possible

4.15 Hazards and contingency planning

PRINCIPLE:

Companies should prepare a plan to deal with a range of potential accidents and environmental emergencies associated with mining. These should include off-site activities such as transport.

Contingency plans should be prepared and tested

Appropriate information on health and environmental hazards and relevant protective measures should be promptly reported to authorities, employees and the public.

4.16 Environmental cost accounting

PRINCIPLE:

Companies should ensure that accounting practices identify all costs, such as environmental and social costs, associated with company operations and these are taken into account in actual pricing of resources and, where appropriate lodged in trust funds for post mine rehabilitation.

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