Credible Public Participation

An efficient management of mineral resources requires the active participation of all rel-evant stakeholders to ensure that there is a bottom up approach that will eventually lead to broad-based growth. Participatory approaches have been shown to enhance quality, own-ership, and sustainability; empower targeted beneficiaries; and contribute to long-term capacity building and self-sufficiency. Since the late 20^th century, there has been a flurry of initiatives to advance public participation in the mining sector. International and national laws have been integrating the notion of ‘human dimension’ in the planning, financing, licensing and mining in general. Public consultation and stakeholders’ engagement are progressively being viewed not as a ‘luxury’, but as an essential tool to gain the ‘social license to mine’, to avoid conflicts, enhance transparency in the management of revenues, and to adhere to the principles of corporate social responsibility. In this regard, it is worth

23 International Council on Mining and Metals (ICMM) (2009). Minerals Taxation Regimes: A re-view of issues & challenges in their design & application, London: ICMM & Commonwealth Secretariat.

noting the 1990 Arusha Declaration on Popular Participation²⁴, which stresses the central-ity of citizen participation and emphasized democracy as a prerequisite for African devel-opment and the Charter on Democracy, Elections and Governance²⁵, which was adopted by the African Union in January 2007 and has been hailed as a milestone in Africa’s bid to promote and develop its governance systems. Indeed, strengthening demand side ac-countability can support the call for adequate legislation for the mineral resources sector.

A considerable step in public participation has occurred with the entry into force on 30 October 2001 of the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental matters (Aarhus Convention)²⁶ (See Box 1).

The Aarhus Convention represents a milestone in the discourse and practice of public participation. It establishes a greatly expanded role for the public in government decision making. Aarhus and its “three pillars” include (i) Access to information: knowledge is vital if the public is to participate in a meaningful, informed way; (ii) Public participation in decision-making: Aarhus adopts the liberal democratic justifications supporting public participation in government decisions and (iii) Access to justice: if access to information or public participation fails, the public must have recourse to objective, third-party tribunals for review. Effective implementation of the Aarhus Convention remains a major challenge in many mineral jurisdictions in Africa.

Box 1: The Aarhus Convention

ARTICLE 6

Public Participation in Decisions on Specific Activities (…)

2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective man-ner, inter alia, of:

(…)

3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making.

4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.

5. Each Party should, where appropriate, encourage prospective applicants to identify the public concerned, to enter into discussions, and to provide information regarding the objectives of their ap-plication before applying for a permit.

6. Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it

24 African Charter for Popular Participation in Development and Transformation (Arusha1990) http://www.afrimap.org/english/images/treaty/file4239ac8e921ed.pdf.

25 http://www.un.org/democracyfund/Docs/AfricanCharterDemocracy.pdf

becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4. The relevant information shall include at least, and without prejudice to the provisions of article 4:

(…)

7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.

8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.

9. Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures.

10. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.

11. Each Party shall ensure that, when a public authority reconsiders or updates the operating condi-tions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.

12. Each Party shall, within the framework of its national law, apply, to the extent feasible and appro-priate, provisions of this article to decisions on whether to permit the deliberate release of genetically modified organisms into the environment.

ARTICLE 7

Public Participation Concerning Plans, Programmes and Policies Relating to the Environment

Each Party shall make appropriate practical and/or other provisions for the public to participate dur-ing the preparation of plans and programmes relatdur-ing to the environment, within a transparent and fair framework, having provided the necessary information to the public. Within this framework, article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identi-fied by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment.

ARTICLE 8

Public Participation During the Preparation of Executive Regulations and/or Generally Applicable Legally Binding Normative Instruments

Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. To this end, the following steps should be taken:

(a) Time-frames sufficient for effective participation should be fixed;

(b) Draft rules should be published or otherwise made publicly available; and

(c) The public should be given the opportunity to comment, directly or through representative con-sultative bodies.

The result of the public participation shall be taken into account as far as possible.

Citizen transformation

Active citizen participation in development processes can effectively lead to better and shared development outcomes. Increased access to information and knowledge can

em-power citizens and strengthen their bargaining em-power and capacity to act as agents of transformative development. This ‘citizen transformation’ process is particularly relevant for the mineral resources sector where asymmetric power relations between private com-panies/government and ordinary citizens and local communities are a norm.

The AU/NEPAD Capacity Development Strategic Framework, which was developed un-der the auspices of the NEPAD Planning and Coordinating Agency (NPCA), recognizes

‘citizen empowerment’ (See Box 2 below) as one of the cornerstones for capacity build-ing.²⁷

Box 2: Citizen Transformation

Citizens who are informed and organized to foster and claim accountability and qual-ity services, and responsibly take charge of their own development without waiting for government.

Key components are:

1. The sense of ownership of development processes by the citizens.

2. Self-responsibility and self-organization for action.

3. Information level and analytical/strategic thinking of citizens to be able to de-politicize issues.

4. Articulation of demand for quality services and claiming accountability of service providers and government.

5. Ability to claim accountability from leaders and managers by citizens and employees.

Tri-sector partnerships

In the past, the development of mineral resources involved mostly interactions between governments and investors. The views and opinions of other stakeholders were not con-sidered and platforms to facilitate their participation in discussions did not exist. In the 21^st century, this practice has changed considerably. Equally, Civil Society Organizations (CSOs) have become a key vehicle to channel the aspirations and expectations of the society at large in these negotiations. The private sector acknowledged that their invest-ment goals and wealth creation agenda can only be successful if they support a range of development activities in partnership with the public sector and CSOs in what is now called tri-sector partnerships. Tri-sector partnerships are now considered an optimal way to build trust, to gain a social license to operate, to agree on shared outcomes and to as-sign roles and responsibilities. This increases project acceptability, can contribute to better management of expectations and facilitates agreement on development outcomes.²⁸ In this regard, multi-stakeholder meetings may provide opportunities for debate on local job creation; poverty reduction; socio-economic development; and assess priorities for action and follow-up. These partnerships enhance social capital and are a sine qua non condition for a successful development of the mineral sector.