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IGF Guidance for Governments: Improving Legal Frameworks for Environmental and Social Impact Assessment and Management

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IGF Guidance for Governments: Improving Legal Frameworks for Environmental and Social Impact Assessment and Management GUIDANCE FOR GOVERNMENTS Improving legal frameworks for environmental and social impact assessment and management JUNE 2020 Guidance for Governments: Improving legal frameworks for environmental and social impact assessment and management June 2020 This report was developed under the supervision of H. Suzy Nikièma and Clémence Naré. It was written by Kristi Disney Bruckner, Clémence Naré, Jenifer Hill, H. Suzy Nikièma, Jill Baker, and Carolina Leseigneur Torres with significant contributions from Luke Danielson and Marina Ruete. RECOMMENDED CITATION Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development (IGF). (2020). IGF Guidance for Governments: Improving legal frameworks for environmental and social impact assessment and management. Winnipeg: IISD. DISCLAIMERS Use of Examples Does Not Endorse a Jurisdiction, Court or Tribunal’s Approach The examples in this document are based on legislation and diverse experiences of stakeholders in managing environmental and social impacts in a wide range of jurisdictions, as well as the decisions of various courts and tribunals. Presentation of legislation from a particular jurisdiction does not indicate endorsement of that jurisdiction’s legislation or how it has been implemented or failed to be implemented in particular projects. However, it is useful to compare the various approaches around the world and to easily access actual language from legislation on a particular key topic. Presenting a case study from a particular jurisdiction does not indicate that the jurisdiction is managing all aspects of its mineral sector optimally. There is room for improvement in all jurisdictions; this guidance document provides opportunities to learn across different jurisdictions from different types of mining projects. Likewise, presentation of a court or tribunal’s decision does not endorse the decision of the court or tribunal; these public decisions are provided as practical case studies for governments to consider as they improve their legal frameworks and implementation measures. Unofficial Translations of Legal Texts The translations of laws and policies referenced and presented in this document are in most cases unofficial translations. This Guidance Document is Not a Substitute for Legal Advice While this guidance document provides a range of factors and options to consider, it is not a substitute for legal advice. Perceived Bias There are potential positive and adverse effects from mining. This document is not intended to be pro- or anti- mining. Any perceived bias is not intentional. The intention of this document is to assist governments in creating environmental and social impact assessment and management processes in order to mitigate and manage negative impacts while optimizing benefits of the mining sector. © 2020 The International Institute for Sustainable Development Published by the International Institute for Sustainable Development The International Institute for Sustainable Development (IISD) is an independent IISD HEAD OFFICE think tank championing sustainable solutions to 21st–century problems. Our 111 Lombard Avenue mission is to promote human development and environmental sustainability. We Suite 325 do this through research, analysis and knowledge products that support sound Winnipeg, Manitoba policy-making. Our big-picture view allows us to address the root causes of some Canada R3B 0T4 of the greatest challenges facing our planet today: ecological destruction, social exclusion, unfair laws and economic rules, a changing climate. IISD’s staff of over IISD.org 120 people, plus over 50 associates and 100 consultants, come from across the @IISD_news globe and from many disciplines. Our work affects lives in nearly 100 countries. Part scientist, part strategist—IISD delivers the knowledge to act. IISD is registered as a charitable organization in Canada and has 501(c) (3) status in the United States. IISD receives core operating support from the Government of Canada, provided through the International Development Research Centre (IDRC) and from the Province of Manitoba. The Institute receives project funding from numerous governments inside and outside Canada, United Nations agencies, foundations, the private sector and individuals. The IGF is a member-driven organization which provides national governments IGF/IISD OTTAWA OFFICE the opportunity to work collectively to achieve their sustainable mining goals. 220 Laurier Avenue W. It is devoted to optimizing the benefits of mining to achieve poverty reduction, Suite 1100 inclusive growth, social development and environmental stewardship. The IGF Ottawa, Ontario serves as a unique global venue for dialogue between its 76 member country Canada R3B 0T4 governments, mining companies, industry associations and civil society. IGFMining.org Secretariat functions are provided by the International Institute for Sustainable @IGFMining Development, which manages the day-to-day operations of the IGF and provides logistical, administrative and strategic support for its activities. The program is undertaken with the financial support of the Government of Canada provided through Global Affairs Canada. Secretariat hosted by Secretariat funded by ACKNOWLEDGEMENTS The IGF Secretariat would like to thank the German Government for its support. The IGF received funding from the German Federal Institute for Geosciences and Natural Resources (BGR) and the German Federal Ministry for Economic Cooperation and Development (BMZ) for the development of this guidance document. This guidance document was developed based on input from IGF members and a wide range of other stakeholders, including participants at the following international gatherings: • October 15–19, 2018: IGF Annual General Meeting in Geneva, Switzerland, where IGF members and other stakeholders provided feedback on the Background Document: Legal Framework of Environmental and Social Impact Assessment in the Mining Sector. • February 4–6, 2019: Investing in African Mining Indaba in Cape Town, South Africa, where Indaba participants from government, companies, non-profit organizations, and other sectors participated in Sustainability Roundtables led by the IGF Secretariat to discuss key themes in environmental and social impact assessment. • October 7–11, 2019: IGF Annual General Meeting in Geneva, Switzerland, where IGF members and other stakeholders provided feedback on the Draft IGF Guidance for Governments: Improving Frameworks for Environmental and Social Impact Assessment. The IGF also accepted comments on the publicly accessible October 2019 draft and executive summary of the guidance document through an open IGF webpage established for this purpose. These comments were accepted from October 7, 2019, until publication of the final guidance document. IGF appreciates all comments received through the forums and webpage noted above. We are grateful for the expert reviews and contributions of the International Association for Impact Assessments (IAIA), the International Council on Mining and Metals (ICMM), Natural Resources Canada (NRCan), and the Secrétariat international francophone pour l’evaluation environnementale (SIFÉE) in the development of this guidance document. IGF requested that the Netherlands Commission for Environmental Assessment (NCEA) review a March 9, 2020 draft of the guidance document. The IGF Secretariat extends its gratitude for NCEA's detailed comments on the draft, which also greatly contributed to the improvement of this final version of the guidance. We also thank the following subject-matter experts for their review and comments on draft reports: Robert A. Bassett, Robert A. Bassett, P.C.; Nathalie Bernasconi-Osterwalder, Senior Director, Economic Law and Policy, IISD; Matthew Bliss, Deputy Director, IGF; Michel A. Bouchard, McGill- United Nations Environment Programme (UNEP) Center for Environmental Assessment; Lisa Caripis, Research and Policy Manager, Transparency International; François Cottard, Bureau de Recherches Géologiques et Minières (BRGM); Gilles Côté, Ph.D., Esq. SIFÉE; Marie-Lou Coulombe, M.Sc., Ministère de l’environnement et de la lutte contre les changements climatiques (MELCC); Dr. Georges Lanmafankpotin, Ph.D, Université du Québec à Chicoutimi; Dr. Karim Samoura, Ph.D., International Consultant; Cathryn MacCallum, Principal Consultant, Social Development and Management, SRK Consulting; Dr. Ann Maest, Vice President, Buka Environmental; Howard Mann, Senior Advisor, IGF, Senior International Law Advisor, IISD; Martin Pérusse, M.Sc., McGill University; Greg Radford, Director, IGF; Alexandra Readhead, Lead, Tax and Extractives, IISD; Jacqueline Taquiri, IISD; and Ege Tekinbas, Gender Equality Advisor, IISD. The authors also thank Ashley Smith-Roberts, Brad Cummings, Kuzi Charamba, Catherine Meneses, and Charlotte Selix for assisting with research and collection of data. iv ABOUT THIS GUIDANCE DOCUMENT BACKGROUND AND PURPOSE The Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development (IGF) members decided at the October 2017 Annual General Meeting to develop a new guidance document on the legal framework for environmental and social impact assessment (ESIA) and related plans in the context of granting permits and negotiating mining contracts. The IGF members selected this topic based on their awareness of the challenges in assessing and managing environmental and social impacts and their insights that improving ESIA and related management plans is a critical component of optimizing sustainable
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