Tag Archives: free prior informed consent

Fiji: No short cuts to dealing with community grievances on mining

FCOSS executive director Vani Catanasiga. Picture: FT FILE

The Fiji Times | 29 August, 2018

There are no short cuts or easy solutions to dealing with community grievances and disputes arising from mining or extraction says the Fiji Council of Social Services (FCOSS).

FCOSS executive director, Vani Catanasiga shared the sentiments after presenting to the UNDP-organised ”Addressing grievances and disputes from the Development Mineral” Capacity Building Workshop in Nadi

Catanasiga who presented on “Free, Prior, Informed Consent – A proactive approach to dealing with community grievances and disputes in extraction”  said while development stakeholders favour  a faster and more efficient approach to dealing with community grievances and disputes, this approach undermined the community’s right to decide on projects that could affect them adversely.

“Working to obtain Free, Prior and Informed Consent or FPIC is about involving communities the right way so that development can have a lasting and positive legacy for both communities and companies,” she said.

“FPIC is an intentional process that should avail to affected communities information on government, business or banks that are stakeholders in the project, project details in their preferred language as well as convening community discussions that involve everyone – including women, children, elders, non-indigenous neighboring settlements – to discuss project terms.”

She said using FPIC could be a proactive approach to dealing with community grievances arising from access to and utilisation of natural resources.

“So yes it may seem, a long and sometimes difficult process but ultimately as you mainstream FPIC into your approaches, you indirectly build communities’ sense of ownership into ensuring the success of the project because you have included them,” she said.

Catanasiga said FPIC is emerging as a best practice approach for people centred development around the world because it promotes the inclusion of all communities that will be affected by proposed development projects.

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Can the law prevail over Chinese investments in Ecuador?

Police and Molleturo communities discuss procedures to monitor the suspension of mining activities. Photo: Manuela Picq

Manuela Picq | Intercontinental Cry | July 25, 2018

Last June, an Ecuadorean court ordered the suspension of all mining activities by a Chinese corporation in the highlands of Rio Blanco, in the Molleturo area of the Cajas Nature Reserve. It was a local court in Cuenca that gave the historic sentence: a court shut down an active mine for the first time in the history of Ecuador. Judge Paúl Serrano determined that the Chinese private corporation Junefield/Ecuagoldmining South America had failed to consult with the communities as required by Ecuador’s Constitution and by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

Judge Serrano deemed the mining activity illegal and ordered the corporation to immediately suspend all its activities. Within two weeks, local communities accompanied police forces and local government officials in monitoring that the court order was respected.

The company appealed, and pressure was on the rise for the following hearing. The Chinese corporation privately offered $18 million to community leaders. Ecuador’s President, the Minister of Mines and the Minister of the Environment visited the province to pressure the local courts and indigenous communities to accept the mining activity. They defended “sustainable” mining as a form of development.

Affected communities consolidated their resistance, monitoring the access to the mine to impede mine workers to enter their territories, building support from neighboring communities, and informing the international community of the legal stakes.

On July 23, 2018, the court met again to either ratify or revert the decision to suspend mining activities in Rio Blanco. The court listened to all sides along with some expert testimonies; but there were discrepancies among the judges who postponed their verdict for another week.

Molleturo’s lasting vigilance for their waters

The Rio Blanco mine is located in the Molleturo-Mollepongo region, above ten thousand feet in the Andes. The mining license encompasses approximately six thousand hectares of paramos, lakes, and primary forests that nourish eight important rivers. This area replenishes the water system of the Cajas National Park, one of the largest and most complex water systems of Ecuador, which covers over a million hectares and holds immense water reserves.

The area is recognized as a natural biosphere reserve by UNESCO. These mountains have long been the home of Kañari-Kichwa indigenous communities. There are 12 archeological sites in the Molleturo area alone: the most famous one is the Paredones archeological site, located right by the mine.

The area is also a vital supply of water. These paramos provide water to 72 communities in Molleturo, freshwater to towns in the southern coast of Ecuador and to the city of Cuenca, the country’s third largest city which praises the quality of its drinking water.

The Rio Blanco mine is expected to be active for seven years, removing about 800 tons of rock per day and using cyanide to extract gold and silver. This entails an estimate of one thousand liters of water per hour that would be contaminated with deadly toxic waste, including arsenic, before being thrown back into rivers and soil.

Local indigenous communities were never consulted prior to the development of the project that would benefit from a recent Ecuadorean law incentivizing foreign investment. Nor did they give their consent to the licensing of their territories to the Junefield corporation. They reject the mine because it would contaminate their waters.

Women are at the forefront of the resistance that began almost two decades ago, when the mining license was first issued. Molleturo communities have been arguing in defense of water more or less actively over the last decade and a half but stepped it up when the mine started its activity in May 2018. Protests exploded, and a group burned out the miner’s living quarters.

Nobody was hurt in the explosion, but the police intervened, heavily armed, to militarize the area. The next day, protesters called in the president of Ecuador’s Confederation of Kichwa People Peoples for help, Yaku Perez Guartambel, but workers from the mine kidnapped him for eight hours, threatening to kill him. Tensions boiled to new heights.

Prior consultation as a fundamental indigenous human right

The Judge ordered the suspension on the mine–invoking constitutional and international indigenous rights to prior consultation.

Rosa, a delegate from the Andean Network of Indigenous Organizations (CAOI), discusses the territorial dimension of self-determination to community members gathered in the páramos of the Cajas mountain range. Photo: Manuela Picq

Since 1989, Art. 6 of the International Labor Organization Convention 169 safeguards indigenous rights to prior consultation on projects taking place on indigenous territories. Art. 18 of UNDRIP establishes indigenous rights to participate in decision making relating to their territories, and Art. 19 establishes that states must consult “in good faith” to obtain indigenous “prior, free, and informed consent: about legislative of administrative measures impacting their communities. In 2016, Art. 25 of the American Declaration on the Rights of Indigenous Peoples reiterated these principles in the context of the Organization of American States.

Prior consultation is not a simple law; it constitutes a fundamental human right of indigenous peoples because their existence is intimately tied to their territories. Their culture, lifeways, and community structures are woven into territorial autonomy.

An Amicus Curiae from a Chinese environmental lawyer

About half a dozen amicus curiaes were presented to Cuenca’s court supporting the communities right to prior consultation, from a range of organizations including the Environmental Defense Law Center, Ecuador’s Ecumenic Commission of Human Rights (CEDHU) and the Ecuadorian group Critical Geographies. Amicus were presented by scholars from Ecuadorean and American universities, including Universidad Internacional del Ecuador, Universidad de Cuenca, Universidad San Francisco de Quito, American University, and Coastal Carolina University.

Environmental lawyer Jingjing Zhang, from Beijing, submitted an amicus in which she provided an overview of relevant Chinese laws and regulations. She testified to the court on July 23, 2018, explaining that China ratified the UN Declaration on the Rights of Indigenous Peoples in 2007, thus supporting prior consultation and consent for any project on their territories. She reminded the words of the Chinese delegate at the 13th Session of the UN Permanent forum on Indigenous Issues (2014): “ the international community is duty bound to fully meet the legitimate requests of indigenous peoples, to promote and protect their basic human rights and freedoms, to safeguard the natural environment and resources on which their survival depends” and China “firmly supports the promotion and protection of the basic human rights and fundamental freedoms of all indigenous peoples around the world. ”

She explained to the court that China has regulations establishing that enterprises may not violate international treaties ratified by the Chinese government and that they are bound by the laws and environmental regulations of the host country. She stated that The Communist Party of China (CPC), State Council, and various government agencies have issued policy guidelines that encourage Chinese companies to focus on ecological environmental protection in their foreign investments. In her view, the Chinese government has deep concerns on the law-abiding and environmental performance of Chinese companies operating overseas.

Her amicus concluded that China’s Environmental Protection Law, Environmental Impact Assessment Law, and the Government Information Disclosure Regulation have strict provisions on the public participation rights of citizens. These regulations are based on the same principles and contain similar provisions to the Ecuadorian norms on the rights of indigenous peoples to prior consultation.

One step forward or two sets back?

The court sentence to suspend the mine marked a milestone of hope to Indigenous peoples and nature defenders. Yet the old tactics of legal warfare are still in use. Within a week of the court sentence, over 20 nature defenders were criminalized, eight of them charged with the crime of sabotage.

The private corporation Junefield/Ecuagoldmining South America did not have to do engage in public debate, Ecuador’s government is taking the lead. It was the Ministry of the Interior who accused indigenous peoples to defend the interests of the Chinese corporation. “The state proves that it is the best lawyer of mining companies,” says Yaku Perez Guartambel.

Will the criminalization of nature defenders continue? For now, judges are holding off a final verdict, and as the clock ticks political and economic pressures thicken. Molleturo leader Fausto Castro says that communities want their right to life back, and that they seek a peaceful solution to this mining conflict. It is indeed an achievement that serious confrontations were avoided, but this may not last forever. Yesterday, when the Judge staved off sentence as hundreds of nature defenders awaited outside the courtroom, many expressed their fears: “if the court reverts its sentence to benefit the State, it is a declaration of war.”

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No truth in youth claims, say Fiji’s lands ministry

xinfa bauxite bua

Bauxite mining in Bua

Luke Rawalai | The Fiji Times | September 6, 2016

THE Ministry of Lands and Mineral Resources has refuted statements by the Bua Urban Youth that Government is undermining the iTaukei social structures to obtain the consent of landowners for bauxite mining.

The ministry’s deputy secretary, Malakai Nalawa  said that they had worked with the divisional commissioner, roko tui, relevant agencies, and three previous permanent secretaries, to conduct several meetings in the villages and districts of Bua before procuring landowners’ consent for mining activities on their land. 

Mr Nalawa said that there was no truth in the claim by the Bua Urban Youth (BUY) Network.

An earlier statement by the BUY said that Government needed to procure the consent of land owning unit and clans before making any decision to mine. 

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Fiji Ministry clarifies on bauxite mining processes

xinfa bauxite bua

Fiji government tries to claim consent to mining from two chiefs is equivalent to free prior informed consent from ALL the landholders…

Luke Rawalai | The Fiji Times | August 28, 2016

BAUXITE has only been mined at Nawailevu and Naibulu and chiefs from both areas have consented to the project, says Ministry of Land’s deputy secretary Malakai Nalawa.

Mr Nalawa said that hence approval had been given by the two chiefs to the companies.

Responding to outcry from Bua Urban Youth about the need for obtainment of Free Prior and Informed Consent (FPIC) from landowners before any mining processes, Mr Nalawa said that this has been obtained.

Meanwhile, BUY representative Vani Catanasiga says that officials must do more than just seeking the chief’s consent as a signal of the community’s approval.

Ms Catanasiga said they needed to prepare dialogue spaces between landowners and companies so that they can discuss on the pros and cons of mining before any decision is reached.

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Survey reports mining bribe claims

rio banner seabed mining

Ropate Valemei | The Fiji Times | June 10, 2016

CIVIL society organisations (CSOs) report numerous instances where chiefs of deep sea mining (DSM) project-affected communities were swayed by bribes or personal favours from Government or industry to allow mining and/or other industrial activity in their villages.

This included villages where CSO surveys reported 100 per cent disapproval from respondents on mining prospects on their land.

This was revealed in the report by Blue Ocean Law and the Pacific Network on Globalisation, which was released early this week, on how deep sea mining and inadequate regulatory frameworks imperil the Pacific and its people.

The report notes this occurred with respect to fishery agreements, where the consent of fishery owners within the village had been bypassed by obtaining the endorsement of the chief instead.

“The courting of local leaders, chiefs or landowners undoubtedly poses risks for the preservation of traditions and livelihoods of indigenous communities,” the report notes.

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Ignorance behind approval of experimental seabed mining

stop esm banner

Ropate Valemei | The Fiji Times | June 09, 2016

IGNORANCE of deep ocean conditions has allowed supporters to characterise deep sea mining (DSM) as low-impact.

This was revealed in a report by Blue Ocean Law and the Pacific Network on Globalisation on how deep sea mining and inadequate regulatory frameworks imperil the Pacific and its people.

However, the report states that even a cursory look at the existing scientific literature establishes that the likely outcomes of DSM include species extinction and loss of biodiversity, sediment plumes and tailings having the potential to pollute the entire water column, the uptake of heavy metals and toxins by marine animals, including commercial fisheries and the disturbance of marine mammals from constant noise and light in the water.

It also suggested that the risk of oil spills and accidents from increased vessel and surface traffic, the destruction of coral reefs through increased acidity of water, potential for induced volcanism or seismic activity and increased carbon emissions.

For nations that depend so heavily upon fisheries, ecotourism, and marine resources for their livelihoods, these risks are extreme, and any activity which threatens them should trigger the utmost concern may also likely to occur.

“Perhaps these risks would nevertheless merit consideration, were DSM really such a lucrative proposition.”

However, it states that the chances of Pacific Island nations seeing substantial revenue from DSM in the near future are low at best.

“Its experimental nature in this early stage and long timeline mean it will most likely be many years before individual DSM sites are profitable even for their operators.

“Mining ventures are notoriously high-risk and dependent on market fluctuations; there are numerous examples of high-cost mines throughout the region which fail to produce profit for either their owners or governments.”

For example, it says Fiji’s bauxite mine, PNG’s Hidden Valley and Sinivit gold mines, PNG’s Ramu Nickel mine, and the Gold Ridge Mine in the Solomon Islands), instead producing only environmental contamination, conflict, and other social ills.

Furthermore, it highlights that the resource revenue brings with it the prospects of greater corruption, instability, and economic challenges such as Dutch Disease and heightened vulnerability to external shocks.

While it is theoretically possible to manage some of these phenomena through transparent institutions, it says most small island states simply lack the manpower and resources to do this, despite otherwise good intentions.

“DSM is being considered as the provenance of governments and industry, but the aforementioned impacts will be felt by communities — most notably, vulnerable ones, including indigenous groups, women, and children.”

The report further states that it is absolutely imperative — and indeed required under international law — that indigenous peoples be not only consulted, but receive adequate and objective information enabling them to either give or withhold their free, prior and informed consent to any DSM projects which may impact them.

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Govt consultations on experimental seabed mining have failed

resource roulette

Ropate Valemei | The Fiji Times | June 09, 2016

DESPITE Government’s claim that the Ministry of Lands and Mineral Resources had conducted wide consultations with key stakeholders to formulate a Draft Policy on Deep Sea Mining (DSM), the Government consultations have not included a broad cross section of Fijian civil society, the public, or indigenous and/or coastal communities.

This was revealed in a report by Blue Ocean Law and the Pacific Network on Globalisation on how deep sea mining and inadequate regulatory frameworks imperil the Pacific and its people, which was released early this week.

The report notes that Fiji’s Department of Environment (DOE) estimates that only about 40 per cent of educated people may be aware of DSM, and that coastal users and outlying communities are largely ignorant of what is happening with respect to DSM prospecting; the DOE reiterates the need for comprehensive consultations and awareness raising.

It further states that one commentator notes that the iTaukei Affairs Board, the TLTB, and the provincial and tikina councils — institutions mandated by statute to deliberate and make recommendations on developmental and other issues that impact the welfare, wellbeing, and good governance of the iTaukei or the indigenous peoples of Fiji — have not been seriously consulted regarding the development of a DSM framework.

With respect to the 2013 mining decree, it adds the Ministry of Lands and Mineral Resources reportedly organised a review of the law but did not include landowners or significant civil society organisations representation in its consultations and would have proceeded with finalising the law if not for an online petition protesting the lack of consultation.

Other consultations organised by the MRD in the past have been called off on short notice.

In a report staff at the Department of Mineral Resources recognises the need to both consult with and obtain consent from landowners and those communities located closest to potential DSM sites, but whether this will actually be done in the event of actual DSM remains to be seen.

“Awareness of free, prior and informed consent (FPIC) throughout indigenous and local communities in Fiji is limited, and it appears that the government does not require FPIC from operators in its existing onshore mines.”

In existing cases involving terrestrial mining, it says there has been no FPIC, and even meaningful consultation is often lacking.

For instance, the mineral prospecting that has been going on in Namosi for more than 40 years, involving more than 15 companies, many landowners have repeatedly expressed opposition to mining, withholding their consent.

“Instead of heeding these clear expressions, mining companies have approached chiefs of local villages, who are not landowners, and paid them, or in some cases directly employed them, in order to gain their consent to mining on what, essentially, is not their land.”

In the case of the Bua bauxite mine, it states the agreement with the community was signed and negotiated by a third party hired by the Government, without any legal advice provided to the community; benefits from this mine are restricted to a small number of individual landowners, while the larger community receives nothing, a situation bound to create conflict as the whole community suffers the environmental impacts of the mine.

The report further note that the Tikina Namosi Landowner Committee (TNLC) notes that bribes occur at multiple stages of the process, from the local level up the ministerial chain; the putative “consent” obtained from individuals who have been paid by mining companies, in addition to being illegal under Fiji’s Constitution, does not equate to the FPIC of indigenous peoples or landowners.

In some cases, government officials have advised that 100 per cent of landowners surveyed expressed support for mining in Namosi; however, a survey conducted by the TNLC revealed that more than 90 per cent of the community (around 984 surveyed individuals and landowners) actually opposed prospecting.

Although the landowner system does necessitate more extensive consultation measures than other jurisdictions, the report notes that obtaining legitimate FPIC in Fiji is challenging.

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