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.

Mt. Polley triggers Canadian soul-searching on how to regulate the mining industry

Dead in the water?

The Mount Polley catastrophic tailings spill of last summer in western Canada has led to a new round of news stories, discussion and debate in Canada about how to regulate their mining industry.

The Mount Polley spill was one of the worst mining spills in the history of Canadian mining and raises questions of whether the current ‘light touch’ regulatory regime really works. Search warrants for Imperial Metals were carried out last week following the report from an independent panel which found evidence of design flaws but said it could not conclude anything about management culpability.

Particularly damaging for advocates of self regulation, the Mining Association of Canada refuses to release details of the self-assessment the Imperial Metals gave itself before the spill, no doubt because it shows they gave themselves a clean bill of health. The report was effectively just about the paperwork and not whether the plans were actually being followed and not checked by independent parties.

The consequences of this investigation could be very wide ranging and affect mining worldwide with increased requirements for third-party verification and more stringent tailing management in coming years. Industry commentators in Canada are already working hard to argue that regulators should not overreact.

One take home from all of this: CSR in the extractive sector starts with effective environmental management. Without this, CSR is dead in the water.

Image from CBC.

A Modern Magna Carta?

Latin for ‘CSR’?

There was an excellent documentary on BBC Radio 4 last night about a ‘modern Magna Carta’. The opening question was, broadly, if 800 years ago the Magna Carta was written to curtail the excessive power of the king, where does power that needs to be curtailed lay today?” The unanimous answer being: large corporations. Cue lots of discussion about what and how would be the best ways to engage with and regulate large international corporations with all manner of interesting people. Well worth a listen if you’re in the UK and it should be available as a podcast as it’s Radio 4’s Documentary of the Week.

Zambia bound!

I will be in Zambia in a couple of weeks for about 4 weeks doing research in Lusaka and on the Copperbelt. My aim is to blog and tweet more regularly whilst I’m there. And it look’s like an interesting time to be looking at CSR issues with the Vedanta CEO putting his foot in it recently. Though, to be fair, mining issues – particularly the persistent sense of being duped by international mining companies – are rarely off the agenda for long in Zambia. If you are around and want to talk, do get in touch.