DRAFT GOOD PRACTICE GUIDANCE FOR MINING AND BIODIVERSITY

Comment Form

For each section of the document, we welcome your comments and suggestions for revision and improvement in the spaces below.

Comments and suggestions: There should have been a “Foreword” and we propose:

“The world is dependent upon Biodiversity but it is being lost at an unacceptable rate and this will affect people’s ability to survive. This is particularly true for some of the poorest people in the world who are totally dependent on biodiversity and eco system services for subsistence and survival.”

These guidelines were prepared in recognition of the need for the Mining Industry to respond positively to the increasing criticism of its impacts on biodiversity and civil society. These were highlighted by Dr Emil Salim, the Chairman of the Extractive Industry Review (EIR) both in the EIR and in an editorial, "World Bank must reform on extractive industries" that appeared on 16 June 2004 in the UK Financial Times”:

“Not only have the oil, gas and mining industries not helped the poorest people in developing countries, they have often made them worse off. Scores of recent academic studies and many of the bank's own studies confirmed our findings that countries which rely primarily on extractive industries tend to have higher levels of poverty, child morbidity and mortality, civil war, corruption and totalitarianism than those with more diversified economies. Does this mean extractive industries can never play a positive role in a nation's economy? No, it simply means that the only evidence of such a positive role we could find took place after a country's democratic governance had developed to such a degree that the poorest could see some of the benefits. Before the fundamental building blocks of good governance – a free press, a functioning judiciary, respect for human rights, free and fair elections and so on - are put in place, the development of these industries only aggravates the situation for the poorest” (Extracts from editorial).

The lesson that ICMM and Mining companies should take from this is that even the best Guidelines can not be implemented unless Dr Salim’s and the UN’s recommendations for Good Governance are in place. Failure to understand this and starting new operations in areas of high biodiversity and low Government and Civil Society Capacity will simply aggravate the situation. This can result in civil disturbances, coups and even wars e.g. Democratic Republic of Congo, Sierra Leone, Angola. 1.1 Summary Comments and suggestions: Line 2 Poor management of biodiversity by mining companies has resulted in loss of biodiversity and conflict with civil society in a number of countries including Philippines, PNG, Indonesia/ West Papua etc

 Loss of “right to operate” by Civil Society  Increased scrutiny from investors and insurers (and potential loss of access to capital and insurance)

After acknowledging the importance of biodiversity as a central component etc add  Respect existing categories of protected areas notably IUCN Categories 1-1V

It is not enough to ensure that communities are actively engaged in discussions affecting them including biodiversity management.  Ensure that communities are actively engaged in discussions affecting them including biodiversity management and respect their rights particular those of indigenous people to give their “prior and informed consent”.

 Building credibility of the work through effective communication and strong local and external review of plans and outcomes. (No one knows the local biodiversity better than local people)

1.2 Background Comments and suggestions: SEAPRISE/CEESP members are extremely concerned about the statement that “in the worst case, the company must demonstrate that the impact of biodiversity is genuinely offset by other actions”

It is felt that this is being be used as an excuse by mining companies. The financing of research programmes or conservation activities else where in a different eco system does not help to replace biodiversity lost by large scale mining operation particularly when the waste impacts on critical fresh water and marine eco systems.

The payment of fines instead of cleaning up pollution created by mining processes as practised in Russia and elsewhere is not a suitable action. 1.3 Principles of biodiversity management and why it is valuable Comments and suggestions: Why are case studies from Australia and Canada being used when there are many examples of poor practise which illustrate the scale of Mining impact on biodiversity and civil society?

 Placer Dome disaster in Marinduque island.  The case of TVI in Sciocon, (see Canadian Parliamentary Report)  The many legacy mines which still remain unattended.  The damage caused in the Cordillera Mountains,  The Visayan islands and Mindanao.  The mining problems in Indonesia/West Papua or PNG

 In Russia mining companies area paying to pollute. The cost does not cover the damage to either people or the environment. 1.4 Biodiversity planning and management objectives Comments and suggestions: A key point is being missed: The Mining Industry is moving into areas of high biodiversity and very low government and Civil Society capacity. Failure to understand this will simply aggravate the situation. The mining Industry is making the situation worse by signing contracts of work/ host government agreements etc with Ministries of Mining. These often undermine National Environmental and Social legislation and the institutes responsible for implementing them. Ministries of the Environmental seldom have the power of the Ministries responsible for Mining, Oil and Gas. In the case of Russia lobbying by the Extractive Industries contributed to the Ministry of the Environment being down graded to a department in the Ministry of Natural Resources. If the Russian Ministry of Environment was still in existence the payment of fines instead of cleaning up pollution would probably have been stopped. Strategic Environmental Assessments-SEAs There is no mention of the need for SEAs. These should be carried out by Governments with support from local and International Institutes prior to mining operations starting. SEAs should ensure that Mining is carried out in an Environmental and Socially responsible way. The SEA should look at the impact of Mining on the Environment and the National Economy both short and long term. It should also look at the impact of mining on other key sectors such as Agriculture, forestry and Fisheries (both fresh water and Marine). It should look at the accumulative impacts of a number of mines on eco systems e.g. the impact of a number of mines on a river or marine eco system.

The SEA should set the standards both for the ESIAs and the Environment Management Plans including closure plans. It should create a frame work/level playing field within which all Mining companies can work.

1.4.1 The statement on open pit mining as practised in Asia and elsewhere with mining waste being dumped in river/lakes or by submarine tailings disposal in the marine eco systems is unlikely to receive any support from Civil Society. See recent statement by 23 Catholic Bishops and Arch Bishops in the Philippines. The Mining Industry can not offset the damage they cause by simply financing an ecological community in the region or assisting in ecological research. In most cases this is a fraction of the real environmental and social costs of the damage caused. The Mining Industry can not reduce its standards below those acceptable in US, EC, Australia or Canada. (See Canadian Parliamentary Report on this) The Industry must start recording its full liabilities for the cost of environmental damage they cause and make provision in their annual accounts for the clean up cost. When new companies take over old mines e.g. after privatisation they must ensure that they know the level of damage that has been done to biodiversity and what actions will be need to clean up the situation. The cost of clean up and installation of clean technologies to protect biodiversity should be included when calculated when negotiating the purchase price.

1.4.2 Precautionary Principle The explanation is inadequate we suggest the guidelines use the IUCN definition: “The precautionary principle” or “precautionary approach” – is a response to uncertainty, in the face of risks to health or the environment. In general, it involves acting to avoid serious or irreversible potential harm, despite lack of scientific certainty as to the likelihood, magnitude, or causation of that harm. The immediate and obvious importance of “precaution” in the context of Natural Resources Management (NRM) and biodiversity conservation, where impacts can clearly be both serious and irreversible, has been recognised through its endorsement by all major biodiversity-related multilateral environmental agreements (MEAs), as well as myriad policy and legislative instruments at all levels. (See IUCN Web pages on Precautionary Principles)

This implies that sometimes, in the face of uncertainty or conflict over the out come, that the decision should be “no project”. 1.5 The importance of communities in biodiversity planning and implementing management Comments and suggestions: Communities “rights” both statuary and traditional are missing and this should be included before values line 2 para 2. Too often mining companies are ignoring Traditional rights particularly of Indigenous Peoples. These are clearly defined in the principals of “Prior and Informed Consent” as defined in the ILO Indigenous and Tribal Convention 1989 (No 169). Articles 6,7 and 15 aim to ensure that every effort is made by States to fully consult with indigenous people in the context of development, land and resources. 1.6 Scope of the good practice guidance and overall approach and structure Comments and suggestions: 2. Module 1: Integrating Biodiversity into Project Development through Feasibility Studies and Environmental and Social Impact Assessments Comments and suggestions: 2.1 Introduction Comments and suggestions: 2.2 Background Comments and suggestions: include  Loss of “right to operate” by Civil Society (Bougainville)  Increased scrutiny from investors and insurers (and potential loss of access to capital and insurance)

Again the authors are using examples from the USA which has an informed Civil Society and a good regulatory framework with the ability to ensure compliance. Why not use examples from West Papua, Indonesia, and West Africa where regulatory frameworks do not exist or are not effectively implemented by the Authorities or are bypassed by companies using “Contracts of Works”. 2.3 The ESIA framework Comments and suggestions:

The ESIA has to be carried out in the context of the SEA which sets the standards for ESIAs and EMPs as previously stated.

Overall this section could be improved! For example under Para page 23 Facilitate and support a partnership approach, line 4 it states: Stakeholders could include indigenous landowners, local users etc.

This should be changed to “ Stakeholders should include indigenous etc

2.4 Screening: integrating biodiversity in the exploration stage Comments and suggestions: 2.4.2 My understanding of WWF is that it works primarily in Eco-Regions. Hot spots are primarily CI terminology. CEESP/SEAPRISE like all IUCN organisations supports the IUCN Amman declaration 2000 calling on Governments to respect Categories 1-1V and these should be off limits for mining exploration. Companies must not try to undermine IUCN Declarations or International Treaties or National laws which protect the environment and civil society. This requires a radical change in the way in which some companies are operating particularly when contracting using “Contracts of Work”. All National Laws must be respected and this is a requirement under the OECD Guidelines for Multi Nationals. No effort should be made to bypass National laws with (C of W) or HGAs etc.

2.4.4 Using Placer Dome as a Case study on page 38 is seriously questioned. If Placer has such good EMPs and Check lists what happened in Marinduque? Should a company associated with such a serious environmental and social problem be used as a Case study? 2.5 Scoping and stakeholder engagement: integrating biodiversity in the conceptual design stage Comments and suggestions:

2.5.2 Kumtor Mine page 47

This is a very controversial Mine. CIEL report that

On January 20, 2000, a KOC truck carrying 1,500 kilograms of ammonium nitrate, used as an explosive at the mine, crashed, spilling its contents. Despite the revised Emergency Response Plan, which IFC said would result in "immediate notification of nearby communities (and) Ministry of Emergency Services and Civil Defense," NGOs report that Kyrgyz authorities were not informed of this spill until the following day.

Company officials and some members of the Kyrgyz government dispute links between the cyanide spill and the reported deaths. Dismissive of the potentially deadly effects of cyanide poisoning, a May 29, 1998 Cameco press release states that cyanide "occurs naturally in most stone fruits." In a June 22, 1998 letter to several financial institutions backing the joint venture, KOC’s then-President Len Homeniuk described the local reaction to the spill as "…media sensationalism, political opportunism and medical misstatement."

Since the accident, elements of civil society that speak out against the KOC project face repression. For example, in January 1999, International University of Kyrgyzstan pathologist Dr. Kalia Moldogazieva was summarily fired and her Institute of Human Ecology at the Institute closed after the results of a study she conducted on the impact of the Kumtor accident, which differed from the official State position, were published in the Kyrgyz national press. In response, an international NGO letter of protest was sent to Kyrgyz President Askar Akayev and International University of Kyrgystan President Asylbek. However, Dr. Moldogazieva was never reinstated. Her capricious termination and the closure of her institute raise serious questions about whether IFC’s development mandate is achievable when free speech and legitimate academic are crushed.

CIEL conclusions/recommendations :

The Kumtor mine has increased export earnings, employment opportunities, and has led to the transfer of some management and technical skills. However, given the estimated 11 year lifespan of the mine, this development does not appear to be sustainable.

Some citizens argue that the majority of project benefits flow to the Kyrgyz government in Bishkek and the Cameco corporation in Canada, and that any positive local development impact is coincidental. IFC should support projects that have more long-term benefits and fewer environmental impacts if it intends to achieve truly responsible and sustainable development. A project that poisons citizens and then conceals from them important information on their safety and well being offsets any positive development impacts. Indeed, IFC’s and KOC’s defensive and evasive response after the spill probably contributed to local hostilities and an environment of distrust that increases project risks and that can potentially have a chilling effect on future development projects. IFC should recognize how its response to the Kumtor accident simultaneously increased public opposition and project risks, and identify ways to avoid this in the future. (Extract form CIEL Web pages)

What is the point of using such a controversial case study unless it can be used to highlight all the serious problems that can occur? The basic lesson that Mining Companies should not work in areas where there is low Government and Civil Society capacity is not mentioned. 2.6 Baseline conditions: integrating biodiversity at the mine design stage Comments and suggestions: 2.7 Biodiversity impact prediction and assessment: integrating biodiversity at the mine design stage Comments and suggestions: 2.8 Mitigation and enhancement: integrating biodiversity at the mine design stage Comments and suggestions: The whole area of Offsets is beset with controversy and the statement that “Offsets are activities undertaken to compensate the impact of an action where impacts are unavoidable” causes even more concern. Offsets can not take the place of good management decisions which protect the environment and people. In many cases a project should not have been started if it is going to cause long term environmental and social problems and the people in the Philippines have many examples where the answer should have been no project such as:

 Placer Dome disaster in Marinduque island.  The case of TVI in Sciocon,  The many legacy mines which still remain unattended.  The damage caused in the Cordillera Mountains,

 The Visayan islands and Mindanao. 2.9 Monitoring, EMP and auditing: integrating biodiversity into the mine development stage Comments and suggestions:

2.9.2 Case study Rio Tinto Madagascar This is again a highly controversial project. Whilst it is accepted by some NGOs that there has been a lengthy consultancy process there are still concerns. In particular the benefits of a new port supported by a major road network are questioned as they will bring with out a wide range of environmental and social problems. Increased deforestation will occur along the roads. The mine itself may cause water pollution problems. HIV is likely to increase in the area as prostitutes move into the Port complex.

Freeport McMoRan West Papua

If you are going to keep this box in then at the very least you must refer to it as being in West Papua and if necessary followed by Indonesia. Just referring to Indonesia will fuel local tensions.

The McMoRan mine is one of the most controversial Mines in the World. It is situated in an area of low government and civil society capacity to work effectively with the Mine. It is in a conflict Zone and people are being killed. The mining appears to be fuelling tensions in West Papua whose Native people want independence from Indonesia. There are problems with the Indigenous people who are out numbered by the Imported Workers many of whom will probably stay behind once the mine closes which will cause further social problems. The dumping of over 200,000 tonnes of mine waste a day into the river systems is not acceptable to the local people or acceptable Internationally. Experience with Ok Tedi and other mines shows that this leads to long term environmental problems and there will not be the resources to clean up the problem once the mine closes. The mine is reported to have an ISO 14001 classification but how is that possible with the dumping of the waste in the rivers?

There are many critical Web pages devoted to Freeport McMoRan examples are shown below.

Solidarity South Pacific web Page up dated January 2005 Freeport in West Papua "I could just as easily write about Freeport-McMoran, an American- based mining company committing genocide in south-eastern Asia by destroying the environment of native cultures, dispossessing natives of their land, and mowing down with machine-gun fire those who resist."

-Derrick Jensen, The Culture of Make Believe

The Freeport mine would not exist if the Indonesian military was not present to terrorize and murder the people who call West Papua home.

Freeport-McMoRan And The Environment

Freeport's mining operation is devastating for the environment of West Papua, which contains up to 7% of all the world's biodiversity. The destruction of this environment is an enormous loss in its own right, but the fact that the people of West Papua live as a part of this environment, and depend on it for survival, means that Freeport's actions guarantee the destruction of cultures and peoples that have been intimately connected to the forests, rivers, plants, and animals of the island for thousands of years.

The infrastructure of roads, pipelines, and cities necessary for the mine's operation have contributed to the destruction of the lands around the mine. But the two major ways Freeport is destroying the environment in West Papua, aside from the massive pits being dug into sacred Amungme mountains and the infrastructural development, is with tailings and overburden.

Finely ground ore residues, or tailings, are dumped directly into the river systems near the mine. Freeport's operation was dumping tailings at the rate of 7,000 tons per day (tpd) in 1974, and now dumps 230,000 tpd into the Aghawagon River, which feeds into the Otomona and the Ajkwa Rivers before reaching the Arafura Sea. The tailings contaminate the river system and the sea with heavy metals such as mercury, lead, and copper.

As tailings accumulate downriver they form new deltas and sediment dams, creating wide stretches of barren, silt covered land. An area miles-wide on either side of the rivers, which Freeport calls the "Tailings Deposition Area," is now a wasteland of tailings deposits, with all life smothered to death under a wash of toxic silt. In just 40 years the river systems have been dramatically changed, destroying the diverse plant and animal life found there. Freeport's swath of destruction in West Papua literally grows every day, as tailings continue to pile up and destroy the tribal homelands of native West Papuans.

NYC [New York City] pension funds concerned about Freeport McMoRan's activities in Indonesia Press Office, New York City Comptroller 04 Aug 2005

New York City Comptroller William C. Thompson, Jr., on behalf of the New York City Pension Funds, today expressed concern regarding the relationship between Freeport McMoRan Copper & Gold, Inc. and the Indonesian military, as outlined in a new report released by Global Witness. “We are concerned about the details of Freeport McMoran’s payments to the Indonesian military, which seem to be more extensive and more questionable than previously known,” Thompson said. “We are particularly troubled by Freeport’s continued elusive responses to inquiries into its relationship with the Indonesian military. The trustees are committed to pursue this issue further.”

The relatively small financing of Kew by Freeport can not be considered as an offset to the environmental and social damage that Civil Society organisations consider that the company is causing.

WE suggest that a review of case studies should be carried out and suggest that you use models that are acceptable to Civil Society as well as Companies. This should not be a PR exercise for Mining Companies.

3. Module 2: Integrating Biodiversity into Operations through Environmental Management Systems and Community Development Programmes Comments and suggestions: 3.1 Introduction Comments and suggestions: This is one of the stronger sections of the Guidelines.

However EMS and CDP will only work within a framework of complete honesty and openness.

Companies must encourage the Governments that they work with to be open and transparent in all their dealings with Mining Industry, sign the UN Convention on Corruption and respect all International Conventions that protect the environment and people.

3.2 Background Comments and suggestions: 3.3 Integrating biodiversity into the EMS framework Comments and suggestions: 3.3.2 On page 80 Maintaining natural ecosystems and managing protected areas, is mentioned. This should be changed to helping to manage protected areas primarily with finance. Mining Co’s are not responsible for managing Protected Areas.

Whilst we agree with the principle we can’t understand how Miners can reconcile dumping millions of tons of waste into rivers or marine systems with this principle.

The same applies to: Conserve biodiversity by not destroying habitat 3.4 Integrating biodiversity into community development programmes Comments and suggestions:

There seems to be confusion between the communications with communities and the community development programme. The key steps listed are to do primarily with the communications process rather than the development of a Community Programme.

Community Development Programmes

These should be developed through a participatory process and biodiversity conservation should be part of the process but poverty stricken villagers living near to Mining operations must get other benefits such as improved education facilities, clean water, access to medical facilities etc. Communities on whose land mineral resources are found or who are affected by Mining operations have a right to some of the benefits. CDPs should never be managed by the Mining Companies themselves, expert rural development and environmental organisations should be employed to manage the CDPs. Communities which receive support in terms of education etc should in principle be more willing to assist in biodiversity conservation, although this does not always happen.

Page 98 Again the use of case studies from Developed countries such as Australia does not tackle the real problems which occur in poor developing countries.

3.5 Community and stakeholder consultation 4. Module 3 - Integrating Biodiversity into Mine Rehabilitation and Closure Comments and suggestions:

Comments and suggestions:

There is no question that some good rehabilitation has taken place but it is often the exception rather than the rule. The fundamental problem is that in many cases mines are abandoned and no rehabilitation takes place. The World is full of Mine legacies and Governments and Civil Society are left to meet the cost of clean up and rehabilitation. Sometimes International Miners hand over to Governments or local companies when the mine is near to closure or when it becomes apparent that closure costs are going to substantial. In other cases Mines are kept open even when they are uneconomical because the costs of closure would seriously affect the company’s balance sheet. In some cases small sums of money are also provided to the organisations taking over mines but these are totally inadequate to carry out the rehabilitation particularly when mine waste is simply thrown into fresh water systems. Companies can not expect to buy their way out of problems in that way particularly now that they can be taken to court in some of their home countries for environmental and social crimes carried out over seas. 4.1 Introduction Comments and suggestions: 4.2 Planning Comments and suggestions: 4.3 Site preparation Comments and suggestions: 4.4 Rehabilitation operations Comments and suggestions: 4.5 Monitoring and research Comments and suggestions: 4.6 Closure and completion criteria Comments and suggestions: 4.7 Links into the EMS and the overall environmental management programme Comments and suggestions: 4.8 Other sources of information Comments and suggestions:

Name: Clive Wicks Organisation:Co-Chair of SEAPRISE (Working Group on Social and Environmental Accountability of Private Sector) part of CEESP (IUCN Commission on Environmental, Economic and Social Policy) Working Group Date: 11 August 2005

Please note that comments by IUCN Commission Members do not necessarily reflect the views of IUCN.

Also please bear in mind that some Commission members felt it was a waste of time to respond as the Mining Industry will not implement the guidelines effectively. They want a radical change in the way the Mining Industry operates and they want it now. Thank you for your interest and contributions to improving the document.

Please send comments using the above form to [email protected] on or before Friday, 12 August 2005.

If you are unable to email it, please fax it to +44 20 7290 4921 or post it to: Andrew Parsons ICMM 19 Stratford Place W1C 1BQ UK