The modern way to regulate the mining industry

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This recent story about Miningwatch Canada attempting to sue the Mount Polley Mining Corporation and the British Columbia Government, has caught my attention. Their claim is that “it has now been over two and a half years since the Mount Polley disaster happened and yet, despite clear evidence of violations of Canadian laws, no charges have been brought forward by any level of government.” Indeed, last year the company has been allowed to resume operations at the site. Effectively, Miningwatch are using a private prosecution to goad the state into action – and the state is responding by trying to get the case stopped.

There are a few things about this that are interesting. The first is that for many actors in the field, the best way to increase pressure on mining companies to improve their practices is through the courts. There is a steady drip drip of stories of mining companies headquartered in the developed world being sued for the behaviour of legally separate (but often wholly owned) subsidiaries in developing countries. This is obviously not the case for Mt Polley – a Canadian mine being sued in Canadian courts – but this shift to the courts is telling. Acacia and Vedanta are being sued in UK courts (and as I pointed out on twitter, UK lawyers meeting their clients in Zambia in the Vedanta case was last week were subject to some pretty serious hassling) and Hudbay is being sued in Ontario courts. Monterrico Metals settled out of court before a verdict was reached in 2011. My own research shows that these cases are being “very attentively watched” by the industry.

One particularly interesting (for me, at least) finding from my research was that these cases often draw on the voluntary standards mining companies have adopted. Unlike the Miningwatch Canada/Mt Polley case above, these are often civil suits based on the tort of negligence. In essence, those suing the mining companies are accusing the companies of being negligent in their behavioiur. In order to establish what is negligent, the cases need to establish a ‘standard of care’ – a standard against which the mining companies can be said to have been negligent. In the past, this was often done using internal company policies. Now, however, with many companies signing up to international voluntary standards it’s these standards that are being used to establish standards of care. If mining companies have signed up to standards, and the courts establish that following these standards would have avoided the human rights abuses companies are being sued for, then the companies will have been negligent. The financial penalties of this can be enormous – just look at BP. BHP Billiton is hoping to sign a $1.55bn agreement with the Brazillian federal prosecutors to avoid $47.5 billion civil suit following the Sanmarco tailings disaster, having already settled with federal and state governments. All of a sudden, the vague sounding pledges of voluntary CSR and environmental standards have teeth.

In my own research, these cases, amongst a range of other pressures, are creating a new regulatory landscape for mining companies. Courts, bringing together hard and soft regulation, increasingly appear to be a modern way to regulate the mining industry.

Photo of Mt Polley disaster from Al Jazeera

Free working paper on mining, CSR and politics out now!

The Effective States and Inclusive Development Research Centre have just published a working paper by yours truly on ‘Corporate social responsibility and political settlements in the mining sector in Ghana, Zambia and Peru’. It’s really a first cut at some of the findings from my work in 2014 which I’m currently writing up into some papers and a book. The abstract reads thusly:

This paper explores and compares the political effects of corporate social responsibility in the mining sector in Zambia, Ghana and Peru. The paper adopts a political settlements approach to answer the question: How do the CSR practices of mining companies affect local and national political settlements? After setting out the main tenets of the political settlements approach, this is articulated with literature on the politics of natural resource extraction and CSR. The paper then sets the wider context of the international drivers of increased attention to CSR in the extractive sector and before exploring the impact of the CSR practices of mining companies on the political settlement in Ghana, Peru and Zambia at the national and local levels. The final sections offer a comparative discussion of what the findings mean for understanding CSR’s role in inclusive development and natural resource governance. The paper argues that recent increased CSR expenditure does not necessarily translate into development for those living near mining companies, particularly in contexts of exclusionary political settlements, of which all case studies exhibited characteristics. There are a great many institutional and contextual limitations placed on the ability of CSR to deliver development for affected communities. Across the case studies, the opportunities CSR programmes afford tended to aimed at those with the greatest capacity to disrupt operations rather than those with the greatest need. In concluding, I argue that, despite some obvious limitations, the political settlements approach can generate new insights through its focus on the politics of development, and, in particular, the politics of stability.

Available here – Go check it out! All feedback welcome.

Listen to the talk I gave in Edinburgh this week

I recorded the talk I gave to the Centre of African Studies at the University of Edinburgh this week and you can listen to it here:

I really enjoyed the opportunity to talk to such an interesting crowd and got some great questions (which aren’t included). I have high hopes we can get some future research collaborations with folks up there.

Listen to my talk on politics, CSR and development

Following the success of my last podcast I’ve decided to record my talks and stick them on this blog. So, here is the audio for my talk ‘Talking about politics: corporate social responsibility and development in Ghana, Perú and Zambia’ at Mining and Communities Solutions 2016, University of British Columbia, 5-8 June 2016.

Despite this being my first talk at a mining industry conference, it went down really well and provoked quite a bit of discussion. Listening again I hear it mainly as a masterclass in saying ‘erm’ a lot (I was rather nervous) but I did get my main points across quite well. I had little reason to be nervous it seems as my message – that we need to talk about CSR as a political intervention into host countries and communities – was broadly well received. This conference was a gathering of people who really do what to improve the impacts and benefits of mining for local communities and therefore very encouraging. I’ll be posting about my ‘take homes’ in the coming days.

Do let me know what you think.

Presenting in Vancouver next week

Next week I’ll be presenting at the Mines and Communities conference at UBC in Vancouver. I have the much coveted last presentation of the day slot. My abstract reads thusly:

In this paper I argue for a more political understanding of the intentions and impacts of corporate social responsibility (CSR) spending in the mining sector in developing countries. These arguments are the result of a 3-year research project examining the drivers and impacts of international voluntary standards in the metals mining sector. This research has examined the decision making and development impacts of mining companies in Ghana, Perú and Zambia headquartered overseas. Data was gathered through over 180 confidential interviews, mainly with metals mining company employees at all levels, but also local communities, consultants, lobbyists, academics and government regulators. These interviews examined business strategy, regulation, CSR decision making and the impacts of CSR programmes and were supplemented by analyses of corporate plans, reports, policy briefs and the grey and academic literature. I begin by briefly elaborating the drivers of international voluntary standards in the sector before focussing on their impacts. Examining CSR projects and spending reveals four main ‘types’: public relations, instrumental, developmental and political. Each of these has different motivations, intended effects and development impacts. Importantly, each of these has political effects, interacting with local and national politics in different ways, with some having a profound impact. Yet, the current debate ignores or plays down the political effects of CSR. I argue that this is a mistake. If we are to understand and improve the development impact of CSR we must understand both the implicit and explicit political motivations of CSR spending, and engage in a clearer political analysis of the societies within which mining companies operate. Only with these clearly mapped can we understand the development potential of CSR spending. I conclude by pointing some ways to move towards a more ‘politically literate’ debate on CSR.

If you are around, do come along. I’ll try and record it so I can post here afterwards. I’ll also blog what I learned after the conference.

This is my first dalliance in attempting to talk the mining industry about the politics of CSR. I think this is really important for both understanding CSR working towards a more ‘developmentally effective’ set of programmes and approaches. We shall see how it goes.

I have a podcast!

A first! A few weeks back I gave the departmental seminar in my department as I’m coming to the end of my current research project (though the writing will continue for some time) and they recorded it and put it on Soundcloud. So, should you wish to hear my recent thoughts on mining and CSR, do have a listen. Should you wish to hear them again, you can download the podcast for your repeated listening pleasure. It has received some favourable mentions on the Twitter already. From people I have no idea who are, which is nice.

 

 

The irony is that seen as this was my first recorded talk to be distributed online it is also one of my least well prepared (It was recorded very shortly after my recent job interview). Which, I think, means that I come across much more black and white and critical than I would have intended. Ah well. Here’s hoping I have more time to get my message straight before it’s recorded for posterity next time. This has inspired me to record the talks I’ll be giving over the summer and upload them.

Samarco tailings disaster: this changes everything?

The recent collapse of a tailings dam at the Samarco project in Brazil has caught widespread attention. It was clearly truly awful and exposed, in connection with the Mt Polley dam failure last year, a key weakness in the the mining sector’s efforts to clean up its act. A good source to read on this is Saleem Ali’s blog over at The Conversation. One quote that caught my attention however was this tagged on to the bottom of an interview with Stuart Kirsch about his book on the OK Tedi mine published last year:

 

“the response to the Brazilian disaster suggests that the default assumption now seems to be that corporations are responsible for their environmental impacts, at least when they are caused by sudden events. This is very different than the way BHP dragged its feet for more than a decade after the problems downstream from the Ok Tedi mine became well-known”

 

The times, they are a changin’. What BHP could get away with 10 years ago it can’t now. The mining industry needs to up its game. This strikes me as very similar to Hevina Dashwood’s argument that in the 1990s the mining industry found itself thoroughly out of step with a new discourse of sustainable development. The industry was forced to up its game or lose influence and investment.

 

Of particular note is that this was no frontier cowboy junior operation, this project was co-operated by two of the worlds largest mining companies. Companies that really should know better. The usual excuses do not apply. If these two companies can’t build a facility that doesn’t dump sixty million cubic meters of down a valley, wiping a village off the map, killing at least 13 people, and destroying a river, who can? What hope does the mining industry have when its leading lights cause these kind of catastrophes?

 

These questions may explain quite how many press releases the ICMM has put out in the last few weeks, a remarkable 5 since the beginning of December, including, importantly, a global tailings management review. If nothing else, the industry needs to be seen to be taking this issue seriously. However, if history is anything to go by (and, in all honestly, it may not be) the industry will drag its feet. I think more than any other issue, if the mining industry fails to get tailings management right, it will never stop being the global whipping boy for environmental mismanagement.