Balancing the Scales - Final Report on Community Protocols and Extractives Published

Are community protocols useful in assisting communities to respond to the challenges posed by extractive industries or large scale infrastructure development? For the last three years, four communities in Argentina, India, Kenya, and Zimbabwe, respectively, have been participating in a project that seeks to answer this question (click here for more information). 

The aim of the research project, implemented by Natural Justice with the support of the Heinrich Böll Foundation and in partnership with organisations and communities in Argentina, India, Kenya and Zimbabwe, was to build a better understanding of the ways in which community protocols can be effective in the context of extractive industries and related infrastructure development. The project, which commenced in 2013, has followed and supported community protocol processes in each of these countries. It has supported the sharing of information about protocols among all of the communities, as well as with the public, and resulted in the creation of a Community Protocols Toolbox that sets forth guidance on what facilitators should consider before and while embarking on a protocol process.

The project recently came to an end with the publication of a report, which provides an overview of what has taken place over the last three years in each of the four community protocol processes. The report also captures lessons that can be applied to future protocol processes, should other communities and civil society actors wish to engage in them. The report can be found here.

Roads to Justice: the impacts of road construction in northern Kenya

“The control man has secured over nature has far outrun his control over himself.”

Ernest Jones,The Life and Work of Sigmund Freud, 1953

In East Africa, Kenya is considered a new frontier for business and development – hence the term “engine” of the region (David 2015). Since the country adopted its Vision 2030 strategy, emphasis has been placed on trade, industrial expansion and infrastructure development, with the aim of not only providing a stable economic environment but also transforming and solidifying the country as a middle-income economy (Kenya’s Vision 2030). To realize this goal, there has been consistent budget allocation and foreign investment into the country’s infrastructure development and growth, which has transitioned Kenya into the current explosive era of infrastructure expansion (Laurance 2016). The recent budget allocation, including external financing, gives a total of Kshs 117.6 billion - approximately USD 1.17 billion (Budget statement Fiscal year 2016/ 2017). But it is the transport routes, particularly roads, which have been identified as critical to maintain and expand this new frontier (Kenya’s Vision 2030 MTP2 2013-2017). The A2 Road Project, designed to bitumenize the 505km stretch of unpaved road from Merrile River, in central Kenya, to the Kenyan-Ethiopia border town of Moyale, fits well into this narrative.

It is hoped that by October 2016, the road construction will open the country’s undeveloped northern region to much yearned economic development (Marsabit CIDP 2013-2017). A region marginalised socially, economically and politically with the aide of colonial policies, some of which have continued well after independence. Pastoralism continues to be the the most productive and prominent livelihood in the region with livestock (cows, goats, and camels) being kept through a well regulated traditional system of grazing (CIDP 2013-2017). Since water is scarce, the community has designated water points, albeit limited, in different areas that are able to support both residents and their livestock (CIDP 2013-2017). Given the precarious nature of the environment and the importance of pastoralism, it is only sensical that any development project should strengthen these livelihood mechanisms. Therefore, we must be cognizant of the benefits and potential negative impacts that roads, such as the one in Northern Kenya ,may bring (Laurance 2015).

Fortunately, Kenyan law is not oblivous to the potential impacts such a development project can have on people and their environments. Kenya’s Constitution inscribes a fundamental right to a clean and healthy environment for all people, and for the benefit of future generations. The Environmental Management and Coordination Act (EMCA), the framework environmental law of Kenya, empowers citizens to participate in environmental processes as well as minimising and mitigating environmental damage. EMCA also stipulates that Environmental Impact Assessments (EIA), a participatory process of assessing potential environmental impacts of projects (Clayton &Sadler 2004), must occur prior to the commencement of projects. If approved, the EIA results in the issuance of an environmental license, which sets out numerous conditions to mitigate social and environmental impacts (Section 63 EMCA; excerpts from Kohli & Menon 2009).

Consistent with national law, an EIA study on the road was conducted and a report filed with Kenya’s chief environmental regulator, the National Environmental Management Authority (NEMA) in 2009 (A2 Road EIA 2009). In 2011, an environmental license to conduct the project under certain conditions was issued to the Kenya National Highways Authority (KeNHA), the project’s proponent (EIA/ 447). KeNHA then contracted two China-based companies (China Wu Yi and Jiangxi Zhongmei Engineering Construction Limited) and one based in Turkey (Gulsan Holding) to carry out the construction.

Five years on and the road construction almost complete, we are able to assess the roads constructions compliance with Kenya’s laws, including the environmental license. Community monitoring to investigate the project site, including interviews with affected communities, has highlighted numerous instances of non-compliance of the Environmental Management Plan (EMP), environmental license and national law.

Culverts and bridges have been poorly designed or constructed leaving surrounding areas and homes prone to floods resulting in the loss of human life and livestock. In other areas, constructed bridges have blocked community dams that were a collecting point downhill hence limiting accessibility of water for livestock and domestic use in these areas. Excavated materials have been disposed alongside the road blocking access routes for animals and residents to water points and grazing fields.

The excavation for the road has also resulted in unregulated clearing of vegetation, damaged existing livestock water pans and exposed borrow pits – the latter two resulting in human and livestock death and injury as reported by the people living in the area. Plastic bags used for construction have either not been disposed of or only partially burnt – a concern for pastoralists who believe livestock have died as a result of consuming this litter. Community water dams have been polluted and water tables disrupted leaving the community with insufficient water supplies, or no water all together, forcing them to walk long distances to access other water points. There has been direct physical displacement and dispossession without adequate compensation and a failure to adequately address dust storms from quarry sites.

All of these impacts are considered within the EIA study, environmental management plan, environmental license or national laws and, hence, should have been adequately dealt with. So, why is it that these impacts have occurred? Some of the reasons that must be explored relate to: the limited amount of monitoring that occurs during projects; vaguely drafted environmental license conditions, which are difficult to implement and monitor like ‘all waste water is disposed as per the standards set out in then Water Quality Regulation’ (Condition 3.1; Kohli and Menon 2009); and poor and ineffective response from relevant government agencies. Further, a disempowered citizenry, who don’t know the law nor mechanism to access systems of justice, are unable to exert the necessary pressure to hold the relevant government bodies and project actors accountable.

We have much work to do to improve the implementation of our laws but it is unwise to apportion blame to one group, given the real challenges that exist with funding and capacity of government agencies. As a starting point, we all must inherently accept that the rule of law, as a fundamental pillar of a democratic society, is completely fused to our plans for development because the law is not there to deprive us of a prosperous nation but to protect and enliven that which we, as Kenyan’s, hold dear.

Rose Birgen is a legal researcher with Natural Justice's Extractives, Infrastructure and Industry Program.

Argentinian National Ombudsman Issues Resolution Recognizing Kachi Yupi Community Protocol

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Guest blog by Pia Marchegiani, FARN

In a major development for the communities of Salinas Grandes and Laguna de Guayatayoc in Northern Argentina, the National Ombudsman (Defensor del Pueblo de la Nación in Spanish) has issued a national resolution, Resolution No. 25/16 (link to Resolution, in Spanish), that officially acknowledges the community protocol finalized by the communities in December 2015. The protocol is entitled “Kachi Yupi; Tracks in the salt; Consultation and Free Prior Informed Consent (FPIC) procedure for the communities of Salinas Grandes and Laguna de Guayatayoc.”

This is the first time that the Argentinian government has recognized a community protocol in this manner. The National Ombudsman is an independent institution within Congress created by the Argentine Constitution with the dual mandate of protecting human rights and monitoring public administration. Resolutions such as these are issued by the National Ombudsman when rights are not being respected or are threatened to be ignored. Thus, they seek to improve enforcement and contribute to policy making. In conjunction with issuing the Resolution, the Ombudsman’s office has also featured the Kachi Yupi protocol on its website, along with an article about the Resolution (see http://bit.ly/1Ts5Aqg). These actions raise the profile of the Kachi Yupi protocol and send a message to government agencies that it is a document that should be respected and used when interacting with the communities of Salinas Grandes and Laguna de Guayatayoc.

Resolution No. 25/16 urges various national and provincial authorities of Salta and Jujuy, including the ministries of infrastructure, mining and energy, agrobusiness, and environment to respect the FPIC procedure described by the communities in the Kachi Yupi protocol for any administrative or legislative measure that may affect them. The Resolution states that appropriate FPIC procedures should also be respected before the implementation of plans or development programs and before any authorization for the exploration or exploitation of resources in these territories is granted.

The Resolution is an important step because it shows that the national government is paying attention to and calling for respect for a process designed in a participatory manner by the communities themselves, and which is inherently respectful of their own culture and worldview. The Ombudsman’s action arrives at a time in which the communities of Salinas Grandes and Laguna de Guayatayoc are faced with a new challenge to the integrity of their land and resources: they have recently learnt through media articles that mining companies continue to seek exploration permits to exploit lithium on their territories.

The public recognition of Kachi Yupi, which was developed in a consensual manner after two years of hard work, strengthens the communities in their struggle to defend their territories and rights.

More information is available at http://naturaljustice.org/representative-work/community-engagement-extractive-industries/. 

Pia Marchegiani is a lawyer with Fundación Ambiente y Recursos Naturales (FARN).

International Symposium Held on Project Analyzing Community Protocols in the Context of Extractive Industries

Are community protocols useful in assisting communities to respond to the challenges posed by extractive industries? For the last three years, four communities in Argentina, India, Kenya, and Zimbabwe, respectively, have been participating in a project that seeks to answer this question (click here for more information). On Thursday April 14, a Symposium at the Heinrich Böll Stiftung's  headquarters in Berlin brought community members and supporting organizations that are part of the project together with experts involved in relevant fields to present and discuss experiences as well as lessons-learned from the project so far.

The Symposium provided an opportunity for participants to learn more about the process going on in each country through parallel working groups. During the working groups, each project partner gave a presentation on the process thus far and participants were able to ask questions and share their own thoughts and experiences. The presentations showed that the various protocol processes had helped communities to decide on their priorities, articulate appropriate ways for obtaining free, prior and informed consent, and led to the formation of community groups to deal with specific issues caused by extractive activities. In the afternoon, a "World Café" session addressed several guiding questions relevant to developing community protocols, including how to identify the "community" to ensure meaningful stakeholder engagement, options for benefit sharing arrangements in the context of extractive industries, and how communities can ensure that impact assessments are conducted with their participation.

The Symposium also served as the launch of the Community Protocols Toolbox, a publication developed as part of the project. The Toolbox provides practical guidance for facilitators on what to consider before developing a protocol. It breaks the protocol process down into five main elements (facilitator’s perspective, community background, process, outcome, and legal landscape), with context provided for each element. It also provides tools for actually engaging in the process of developing protocols, including tools for holding meetings, ensuring an inclusive process, and for finding relevant national and international laws. It is currently available in hard copy in English, but we hope to make it available in other languages soon. Over the next few months, work will also continue on a research paper to provide an overview of the different processes and seek to identify good practices for protocol processes in the extractive industries context.

Kenya: Mining Bill Submissions to Senate

A rig belonging to Tullow Oil and Africa Oil who recently commenced with 

exploring oil in Northern Turkana at Lowarengak, while the Mining Bill explicitly 

excludes application to fossil fuels such as oil, the interrelatedness of the legislation 

governing community land and the broader extractives sector is crucial 

for Kenya’s future. cc. Billy Kapua, FOLT

Natural Justice’s policy advocacy involvement with Kenya’s Mining Bill continues in 2015, with greater vigor as this law draws closer to its likely enactment this year. On the 26th of February, the Senate heard oral and accepted written submissions by members of the public on the Mining Bill. This Bill already passed in the National Assembly, Kenya’s other legislative house. However, given that the Constitution requires any law affecting the counties to go through the Senate, and outcries last year over the Bill’s legality and the powers granted to the Cabinet Secretary, it merited consideration by the Senate prior to assent by the President. 

Together, with five other partner organizations – the Friends of Lake Turkana, the Kenya Civil Society Platform for Oil and Gas (The Platform), the Institute for Business and Human Rights, Oxfam GB Kenya and the Kenya Land Alliance – we collaborated in the preparation and submission process. The process, coordinated by the Platform, focused on three main issues, (a) the institutional framework and discretionary powers of the Cabinet Secretary and other functionaries; (b) community engagement, participation and land; and (c) transparency and accountability. 

One highly contentious aspect of the Bill is the fact that the Cabinet Secretary is granted great powers in administering the mining industry in Kenya; however, this has been ably fleshed out in the past. Our submissions noted that there was a need to look at other functionaries created by the Bill such as the Directors of Mines and Geology, for example, and ensure that their conduct is subject to explicit constitutional and lawful limitations expected within a democratic space such as Kenya. 

Seeking Justice at the International Level - New Guide Published by Natural Justice

Grievance mechanisms are one avenue for indigenous peoples and local communities to have addressed issues and concerns arising from impact by projects, such as those related to extractive industries and infrastructure. However, the processes and procedures of grievance mechanisms are often buried deep in operational policies and guidelines catering toward technocrats, rather than those communities likely to need them. Thus, much work has been done to develop and improve communities’ access to grievance mechanisms by producing publications that break down and explain such mechanisms in a more user-friendly way. 

The goal  of this document ‘Seeking Justice at the International Level: A short guide to Regional and International Grievance and Advocacy Mechanisms For Indigenous Peoples and Local Communities’, is to provide a brief overview of relevant mechanisms that communities can use to potentially address an issue, to get a sense of the focus of each mechanism and in what contexts they might be useful.

Community-Company Engagement: “Good” Practice in Extractive Industries

The extractive industries, including mining, oil and gas, continue to have large-scale and systemic impacts on indigenous peoples and local communities that live on or near such projects. Communities, whether they seek to resist the entry of extractive industries on their lands – due to the well-known history of gross violations of their rights as a result of mining activities or due to lack of obvious benefits – or whether they seek to cooperate with the hope of obtaining some benefits, will usually interact with companies in some form or another. 

Over the past years companies and communities have increasingly engaged through amicable means. These types of ‘community-company engagements’ have taken a broad range of interactions inducing dialogue throughout a project’s life cycle, including specific negotiations, agreements and accompanying mechanisms such as grievance mechanisms and development funds. This paper  by Marie Wilke, Laura Letourneau-Tremblay and Stephanie Booker seeks to examine community-company engagement through the lens of communities that, for a variety of reasons, struggle to engage with companies and who seek to use these types of agreements to formalize their role in the process, to obtain clear commitments on key points such as the scope of impact assessments, to draw up mechanisms that can address potential conflicts and to set the stage for more comprehensive socio-economic participation negotiations at a later stage.

Workshop on Compliance Monitoring and Ground-truthing, 8th-9th December, 2014

The Natural Justice India team of eight members attended a workshop about Compliance monitoring and ground-truthing in the context of industries. The two day workshop held on the 8th and 9th of December was facilitated by NAMATI represented by Manju Menon and Kanchi Kohli. The first day of the workshop focussed on the process of ground-truthing and how to extrapolate and filter through multiple available legal data and clearance papers. This was followed by an exercise where the participants were divided into groups and collectively went through various official documents where the content was dissected to check for loopholes within compliance conditions. This exercise enabled the participants in a detailed structural industrial review comprising of reading and analysis of official documents such as letters of environmental clearance, reports on environment impact assessment and compliances etc. 

Day two of the workshop was about following up of the ground-truthing methodology within a context. The discussion was kept significantly contextual where a possibility of paralegal involvement as an important methodology was explored. The process of identifying and training paralegals was discussed. Since monitoring is often an issue when one is not based in the context, constant monitoring is included within the ground-truthing process. It was pointed out that the ground-truthing method can also get ingrained in the larger praxis of community involvement and process of paralegal training, also specifically along the lines of a participatory research project.