Legal Remedies for Resources Equity – BCPs as a community-driven and consensus building process

On 15 September Natural Justice participated in a day-long workshop on Legal Remedies for Resources Equity co-organized by the Heinrich Böll Stiftung, UfU and eLaw in Berlin, Germany. The workshop brought together more than 200 lawyers from 38 countries involved in public interest litigation and support around equitable and sustainable natural resources management.

The second session of the day focused on “Public participation: Challenges and opportunities for local populations” and involved short presentations from practitioners on different national campaigns and cases on enforcing the right to information, public participation and free, prior and informed consent (FPIC).

Associate Marie Wilke reported on Natural Justice’s work with communities who face adverse effects caused by the mining industry and large-scale infrastructure projects. Over the past year Natural Justice has worked to support communities from Argentina, India, Kenya and Zimbabwe in mobilising and formulating their interests and strategies using community protocols (CPs). Session participants were particularly interested in CPs as a means of internal community empowerment. Reporting about numerous instances where individuals had sold out their communities’ resources to government and industry stakeholders against the will of the larger communities, participants felt that the bottom-up process of CPs can be critical in avoiding such issues.

On the basis of a number of litigation cases in Southern countries and experiences with EU public participation laws participants also engaged in a discussion on the need for national, regional or international registries for CPs to be able to more easily use them in formal cases. At the same time there was recognition that overregulation can easily lead to a narrowing of spaces for community voices. After a presentation on the Ecuadorian Yasuni National Park experience workshop participants assessed how a CP could have avoided some of the problems that characterize the initiative.

Participants found that one of the main challenges associated with BCPs in the context of extractive industries are the long timeframes needed for developing a BCP and the unpredictable outcome. For that reason the practitioners suggested that BCPs might be most useful in the early stages of foreign investment, i.e. before or the latest during the environmental testing and exploration stages, as this would ensure that communities are not under external pressure to conclude the process, while investors will be under increased pressure to consider BCPs where they already exist.

Other sessions looked at strategies to keep resources in the ground, due diligence of mining companies, transparency in the resources sector and the financialization of nature.