Community consultation in Mining

Two-hundred and sixty thousand metric tons of arsenic trioxide is enough to poison nearly everyone on the planet and severely impact the global ecology. Imagine it was buried in your backyard, leaking into your community's traditional lands. Now imagine that your community members have few, if any, effective means of influencing decisions as to how and when this arsenic is to be cleaned up, nor any control over its burial in the first place.

The Yellowknife Dene First Nation, the Dene Nation, and the North Slave Métis Alliance (NSMA) in Canada's Northwest Territories do not have to imagine this scenario. These aboriginal peoples, along with other residents of the city of Yellowknife, have lived with this situation since Giant Mine first started using arsenic to mine gold in 1948. For more than half a century they have had little power to influence how Giant Mine disposes of large quantities of arsenic.

The Ngäbe-Buglé, an indigenous group in rural Panama, have strongly denounced copper mining development but are similarly powerless to influence the industry. Despite strong opposition since the discovery of a deposit there in the 1950s, Tiomin Resources, the mining company in question, repeatedly tells its shareholders that it has "strong community support" for the mine. Although company-directed community consultations have been conducted, the Ngäbe-Buglé have been unable to influence any aspect of the proposed mine.

Such scenarios are common. Throughout the world, the history of mining industry relations with indigenous peoples has been grim, pervaded by many examples of human rights abuses and severe social and environmental impacts. Indigenous peoples typically have little influence on key mining decisions that affect their lands and livelihoods. While the fundamental rights of indigenous peoples to make decisions concerning their lands and resources has been widely acknowledged, significant gaps exist between the rhetoric and reality.(1)

In the search for ways to promote indigenous peoples' perspectives, community consultation processes are often proposed as useful instruments because they can empower local communities to influence decisions on mining projects. Yet despite such potential, many mining consultation processes serve as a smokescreen, lacking substance and creating the illusion of democratic process. Public relations ploys justified under the name of consultation abound. The issues facing indigenous peoples and the international mining sector cannot be solved solely through the development of guidelines for community consultation or progressive corporate policies on indigenous peoples. At the crux of the problem are power inequities and the lack of institutional will to share decision-making power with local communities. Two cases -- Giant Mine in Canada's Northwest Territories, and Cerro Colorado in western Panama -- highlight how community consultation has been ineffective in promoting community empowerment or development, despite private and public sector claims to this end.

Tiomin Resources & Cerro Colorado in Panama

The Cerro Colorado copper mine is located in western Panama, in the homeland of the Ngäbe-Buglé,(2) who make up 60 percent of the country's indigenous pOPulation. The Ngäbe-Buglé are primarily an agricultural people and possess among the highest indices of poverty, malnutrition, and illiteracy in the country. The Cerro Colorado copper deposit is the 12(th) largest known copper deposit in the world and has yet to be exploited. Cerro Colorado is currently finder the management of PanaCobre S.A., a wholly-owned subsidiary of Canada's Tiomin Resources, Ltd. The project was put under temporary contract freeze in May 1998 due to a dive in the price of copper on the global market. Yet Toronto's Aur Resources recently negotiated an option to purchase Cerro Colorado, and the future of the deposit is once again uncertain.

Both the law establishing the semi-autonomy of the Ngäbe-Buglé comarca (homeland) and the 1998 General Law of the Environment require that commercial exploitation of mineral resources located on indigenous lands proceed only with the authorization of the appropriate indigenous authority. Because the concession agreement predates the passing of both laws, however, neither law applies to Cerro Colorado. The Ngäbe-Buglé were not involved or consulted in concession negotiations and only learned of Tiomin's plans once the agreement was signed. The company did carry out minimal consultations during the mine development phase with both Ngäbe-Buglé leadership and local communities, but was this consultation process authentic? Tiomin argued that consultation served to keep local people informed of company activities and to solicit their input on elements of the mining project, such as employment and certain aspects of operations. Tiomin also affirmed that it would not proceed with developing Cerro Colorado in the face of significant local opposition.

The 1981 Declaration of the General Guaymí Congress on Cerro Colorado, however, outlined in detail the position of the Ngäbe-Buglé people in opposition to the mine. Agreement at every General Congress(3) since then has been to oppose the mine, and studies carried out prior to the concession agreement, including the company's socio-economic study in 1997, confirm that the Ngäbe-Buglé continue to oppose the mine. Tiomin nevertheless maintains that there is widespread local support for their mining project, and communicates this "fact" to its shareholders and to the general public. (Atencio, & de Ordónez, 1997) Community members, however, believe that Tiomin is only interested in a public relations exercise -- disseminating propaganda and "manufacturing consent." Field interviews conducted in 1999 clearly indicate that consultation was used as a tool to create the illusion of a democratic process. (Mamen, 1999) A Tiomin senior executive also described the process as a "PR exercise," stating that obtaining active community support "would make it difficult for other groups to go in and cause serious pain to the project." The consultation process at Cerro Colorado in effect served to influence local people to accept the project by creating the illusion that PanaCobre had the community's interests at heart.

The traditional leaders of the Ngäbe-Buglé have less decisionmaking power since government political structures now have control over local political decisions. Representatives from these puppet governments have generally been the sole representatives of the Ngäbe-Buglé at recent mining discussions. Such perspectives may not be representative of general opinion and do not allow for diversity of opinion -- a cornerstone of community empowerment.

A tremendous gap in capacity existed during the consultation process. The Ngäbe-Buglé were poorly equipped to make decisions regarding Cerro Colorado. They had no prior experience with mining and were not provided with knowledge of the nature of the global market, the mining industry, the potential impacts of mining, or their rights under national and international law. The vast majority of the communities' information about the mine's potential impacts came from the mining company and is considered by many to be thoroughly biased. In addition, the few documents provided by the company were not made accessible in the local language, making an even playing field impossible. While a Commission on Mining and the Environment was set up in the comarca, its director had no previous experience with the mining industry and no means of accessing pertinent information.

Community members are torn. Many realize that the mine will cause serious social and environmental damage, but are hard-pressed to secure alternative income or development that is in line with their cultural values. In the case of Cerro Colorado, local people have been shown that community consultation processes have not served their needs. The Ngäbe-Buglé remain isolated and disempowered, and have no means by which to communicate their position on the international level, allowing the public's perception to be controlled by the mining company. Many Ngäbe-Buglé are already fed up and are disengaging, tired of living in the shadow of fear and constant uncertainty at Cerro Colorado.

While almost all international players now agree that consultation is required, there currently exist no mechanisms or guidelines to ensure that consultation is meaningful. Without such mechanisms, companies like Tiomin can continue to publicize their "social responsibility" without having to engage in meaningful community consultation processes.

Giant Mine in the Northwest Territories in Canada(4)

In 1999, Royal Oak Mines, owner of Giant Mine in Yellowknife, went bankrupt and abandoned all of its properties. This event had a serious impact on the environment and on local communities because Peggy Witte, Royal Oak's owner, also abandoned 260,000 metric tons of water soluble arsenic trioxide.

Since 1948, Giant Mine has been using an old-fashioned goldroasting operation, a process that emits arsenic trioxide and sulfur dioxide. Over the years, arsenic trioxide powder has been buried 200 feet underground in 15 "man-made storage vaults." The underground vaults are only a few hundred meters from Great Slave Lake and the Mackenzie River watershed. Two of the vaults have already begun to leak into the surrounding area and groundwater. An environmental assessment revealed severe arsenic contamination throughout the area. (Mace, 1999) More pollution is anticipated as the vaults are no longer in permafrost due to climate change. A number of indigenous groups currently reside in the area, including the Dene Nation, the Yellowknife Dene First Nation, and the North Slave Métis Alliance.

Giant Mine is located on land owned by the Government of the Northwest Territories. Sub-surface mineral leases, however, were issued by the Department of Indian and Northern Affairs (DIAND). DIAND also has primary responsibility for the Giant Mine clean-up and has estimated the cost to be in the magnitude of $250 million.

The local aboriginal population has been engaged in discussion with Giant Mine for years. According to former Chief Jonas Sangris of the Yellowknife Dene First Nation, his people have faced a difficult experience with Giant Mine. "Until the 1960s, mine tailings were dumped in the Bay, killing fish and poisoning fish habitat. The First Nations people have received few employment or other business benefits. (Trerice, 2000) Chief Sangris has also emphasized that First Nations people Still, aboriginal peoples have had little ongoing consultation on clean-up plans. The Yellowknife Dene First Nation was involved in Phase 1 of the environmental assessment through a report commissioned by the government of the Northwest Territories and Indian and Northern Affairs Canada and carried out by Deton'Cho Environmental Alliance -- the economic development corporation for the Yellowknife Dene First Nation -- in a joint venture with an engineering firm. Along with the Dene Nation and the NSMA, Yellowknives were also invited to a 3-day workshop in 1999 hosted by the government on reviewing alternatives for clean-up. One of the key concerns voiced by aboriginal participants was the health risk posed by taking such large amounts of arsenic out of the vaults. There have in fact been no other remediation projects on this scale and local communities are justifiably worried.

But this is where the involvement of aboriginal communities stopped. The Royal Oak Special Project team, which reports to DIAND, has become increasingly difficult to work with. There is no public registry on the clean-up project and the project team has not voluntarily released information to aboriginal constituencies despite repeated requests. Aboriginal groups have had to file a number of Access to Information legal challenges.

On December 14, 1999, Miramar Mining Corporation bought bankrupt Giant Mine's remaining assets from DIAND in a confidential negotiation process with no aboriginal involvement. Miramar immediately resumed gold mining and conducted exploration and development programs designed to extend the life of Giant property. (Canada NewsWire, 1999) No community consultations were conducted during these negotiations. The sales agreement also ensured Miramar indemnification from all environmental liabilities related to previous operations; in exchange, Miramar agreed to work closely with the federal and territorial governments to develop a long-term reclamation strategy. This agreement included the establishment of a Reclamation Security Trust, designed to help offset the cost of future environmental clean-up and funded from a net proceeds royalty on processed Giant Mine ore.

No proceeds from the ore extracted at Giant are being set aside for clean-up, however, because the royalty is based only on net proceeds and Miramar currently does not turn a profit. Miramar's operating losses are being offset to some degree by the gold at Giant, but the costs of clean-up are once again slipping through the cracks. Local aboriginal groups had no input in the decision to sell Giant Mine nor in the terms of the agreement.

While Miramar has an environmental policy, it does not address aboriginal community relations. In a meeting in August, 2000 in Yellowknife, a senior Miramar official confirmed that the company has had little, if any, involvement with local aboriginal community members or organizations. Despite Giant Mine's grim history and the horrendous scope of the arsenic problem, the company has not planned for effective community relations and its sustainable development policy does not address the need for community consultation.(5) Despite its power to do so, DIAND did not require that meaningful community consultation be part of Giant Mine's future operations.

To date, clean-up efforts have stalled. While a multi-stakeholder committee on soil remediation has been established and includes aboriginal representation (from the Dene Nation, the Yellowknife Dene Nation, and the NSMA), the committee's mandate is not focused on the clean-up of Giant Mine. In the meantime, Miramar continues to extract the last remaining deposits of gold from Giant Mine, and DIAND continues to develop clean-up plans without adequate consultation with aboriginal peoples.

Beyond Isolated Cases:

The Co-optation of Consultation is a Global Issue

In many cases around the world, consultation processes have been used by mining companies and governments as a tool to placate local communities and to avoid criticism for decisions that have, in effect, already been made.

It is not surprising that indigenous peoples frequently take issue with the significance, substance, and scope of the consultation process. Peter Di Gangi, Research Director at the Algonquin Nations Secretariat in Canada, voices a growing concern that consultation processes have been executed in a cursory manner in order to satisfy a corporate checklist: "[the company would] ask people what they thought, they'd take into account the things people said that they agreed with, and they'd ignore the stuff they didn't agree with." (Di Gangi, 1999) Deep resentment and distrust of many consultation processes has been the net result. Indigenous peoples are tired of listening to companies and governments that claim to have consulted local communities when in fact local people did not view the interaction as meaningful. An equally disturbing problem is the contention that companies employ divide and conquer techniques to pit different local indigenous groups against each other in order to weaken their collective power and organization.

The same few companies often employ such techniques worldwide. Tiomin, for instance, has also faced opposition and criticism from a coalition of local communities and organizations called the Coast Mining Rights Forum (CMRF) in response to a proposed titanium mine in Kenya. Tiomin claims to have distributed over 100 copies of their environmental impact assessments (EIAs) for local community review. Local Kenyans argue that they were not consulted on potential social and environmental impacts and did not receive draft copies of the EIA report for comment before it was approved. This is a critical oversight given that local communities identified a number of disparities in the EIA once they finally succeeded in getting a copy. The CMRF indicates that local communities were also neglected during the EIA preparation. (Miningwatch Canada, 2000) Once again, superficial actions masquerade as meaningful consultation.

Despite its potential, community consultation is far from being a panacea to the problems facing indigenous peoples because of mining. In practice, the processes of consultation can be problematic. Consultation, like an form of participation, is an inherently political process, with deeply-embedded power structures. Consultation by itself does not ensure a level playing field. Governments are often (as is the case with DIAND in Canada) too passive or closed in terms of consultation, despite the growing demand by indigenous peoples for formal recognition of their land rights prior to natural resource development. When governments are involved, their involvement is implicitly or overtly pro-mining and not pro-community.

To date, the tremendous complexity of the process of consultation with indigenous communities has not been adequately addressed by the industry nor by multilateral institutions or national governments. In conclusion we recommend a number of concrete measures that should form the foundation of meaningful consultation processes:

- The recognition by mining companies of indigenous land rights, even when these rights are not legally institutionalized.

- The recognition of the right to prior informed consent within the consultation process.

- A commitment to strong processes for community consultations throughout the life of a mine, including during mine closure and clean-up. Tokenistic or partial involvement of indigenous communities is meaningless. Gender issues within consultation processes must be adequately addressed.

- Consultation goals, processes/methods, and timelines jointly determined by the mining companies, governments, and indigenous groups.

- Provision of funding and capacity-building support by governments to allow for meaningful participation of indigenous peoples. Local peoples must have access to unbiased information about mining, its potential impacts, and similar scenarios in other regions of the world. NGOs may play a key role in such capacity-building.

- Tangible mechanisms for accountability for both governments and mining companies, including reporting requirements for stakeholder consultations.

- Financing arrangements for mining operations on indigenous lands, including requirements for community consultations and comprehensive social and environmental impact assessments within financing agreements.

References & further reading

Atencio, I. & de Ordónez, M. (1997). Analisis Socioeconomico de las Comunidades Adyacentes al Proyecto Minero de Cerro Colorado. PanaCobre, S.A.

Canada News Wire (1999, December 14). Miramar acquires Giant Mine assets, boosts production and lowers costs. Canada News Wire. www. newswire.ca/releases/December1999/14/c4051.html.

Di Gangi, P. (1999). Implementing Delgamuuk'w. Transcript of speech given at the Implementing Delgamuuk'w Conference, March 1-3 in Vancouver, Canada. Union of British Columbia Indian Chiefs. www.ubcic.bc.ca/ transcripts.htm.

Mace, I.S. (1999). A Study of Arsenic Contamination from the Royal Oak Giant Mine, Yellowknife, NWT. Kingston: Royal Military College of Canada.

Mamen, K. (1999). Canadian Mining Multinationals and Indigenous Communities: A Study of Company-Community Dynamics at the Cerro Colorado Copper Mine, Ngäbe-Buglé Comarca, Panama. B.Sc. thesis. Montreal: McGill University.

Miningwatch Canada (2000, August 18). Canadian resources company creating conflict in Eastern Kenya. Miningwatch Canada.

Trerice, B. (2000). Gold Mine Leaves Behind Environmental Mess. Assembly of First Nations National Indian Brotherhood 2000.

(1). See for example the International Convention on the Elimination of all Forms of Racial Discrimination, the UN and OAS Draft Declarations on the Rights of Indigenous Peoples, ILO Convention 169, Agenda 21, and World Bank Operational Directive 4.20

(2). Also referred to as Guaymi.

(3). Comarca-wide meetings occur once every three years.

(4). For more information, see: Canadian Arctic Resources Committee (November 2, 2000). The Giant Mine In Yellowknife, Northwest Territories, Canada. Canada: Kevin O'Reilly.

(5). See Miramar's Web site at www.miramarmining.com/mainpages/sustainable_policy.shtml. leaves_ behind_environm.htm

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