Terms of Reference
Rights of local people in mining areas identified in legal documents
Assignment
02 National Consultants
Duration of Assignment
From: June 2015 – November 2015
Duty location
Ha Noi
Supervisor
National Project Manager NREP, DGMV, UNDP
1. BACKGROUND AND CONTEXT
On 17 November 2010, Vietnamese National Assembly adopted a new mineral law (2010
Mineral Law), which took effect from 1 July 2011 replacing the 1996 Mineral Law and the
amended Law in 2005. Like 1996's Law, 2010's Law contains provisions about protecting the
right of people living in the mining area.
Rights of local people are safeguarded under Viet Nam law and regulations, where especially
Decision 219/1999/ QĐ- TTg of November 11, 1999 on the policy for the protection of
interests of people in localities where minerals are exploited and/ or processed and the
protection of untapped mineral as promulgated by the Prime Minister in November 1999, is
of relevance. However, in reality, many localities did not implement this decision fully. Up to
now, there has not been a comprehensive report about the status of Decision 219's
implementation from when it was issued until 2010 when the new Mineral Law was issued.
The reasons why this Decision has not been applied in reality have not been analyzed yet.
The Mineral Law 2010 has only one article (article 5) regulating the protection of the right of
people living in mining areas. Meanwhile, there is a separate chapter (3rd Chapter Responsibility for protecting unexploited minerals) regulating the responsibility of
individuals and organizations like related ministries and departments; People's Committee of
all level in protecting unexploited minerals. But the Government has not assigned any
ministries or relevant offices to develop guidelines for those regulations, which have caused
many problems during the implementation process. For example, it is a common knowledge
that local authorities often play a passive role in providing licenses for mineral mining
companies in their areas. The consultation conducted by local authorities is sometimes also
described as “formalism”: The stages of consulting community or conducting environmental
impact assessments are often skipped. Local authorities have recognized that mineral mining
activities bring “more harm than good” but they are ostensibly trapped in a state of
“dilemma”. In addition to directly negotiating with and persuading enterprises to perform
their commitments and mitigate adverse impacts to the community, the local authorities
usually cannot do anything but submit the unsolved problems to higher level, explaining that
they do not have enough authority to solve these problems.
Because of the above reasons, it is necessary to review and conduct a study so as to analyze
the concerns further and recommend more detailed regulations on protecting of the rights of
people living in mining areas and assuring the implementation of Government policies.
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2. OBJECTIVES OF THE ASSIGNMENT
General Objectives
Study and evaluate the implementation of the policy and legal framework of protecting local
right and the right of people living in mining areas in order to recommend improvements in
relevant policy or regulatory framework.
Specific objectives
The assignment aims to:
a) Clarify the rationale and legislative responsibility and rights of each stakeholder (the state,
enterprises and individuals) in dealing with rights of local people, especially in accordance
with the law about minerals exploitation and management. .
b) Comprehensively analyse and evaluate the implementation status of Decision 219 from the
date of issue to the date that the Mineral Law 2010 took effect by investigating the effect on
rights of local people within selected localities, following a rights-based approach and taking
gender aspects into consideration. Accordingly, specify the negative and positive
consequences of the Decision when applied in practice and analyse the reasons for any
negative consequences.
c) Propose directions to improve the effectiveness of the law in protection of rights of people
living in mining areas.
3. SPECIFIC DUTIES AND RESPONSIBILITIES
3.1. Specific duties
During the time carrying out the project, the consultant team has to fulfil the following tasks:
a) Conduct any relevant researches and studies to fulfil the first two specific objectives above
(1. clarify the rights and responsibilities in dealing with local rights; and 2. analyse the
implementation of legal provisions in mining areas)
b) Conducting survey and work with stakeholders in dealing with rights of local people and
analyze and evaluate the impacts of provisions in dealing with rights of local people and in
particular dealing with Decision 219 in mining areas, and taking gender aspects into
consideration.
The detailed work plan is as follows:
- Work with the Department of Natural Resources and Environment of Nghe An province to
analyse the situation of the propagation and dissemination of Decision 219 and or rights of
local people in dealing with mining in the province. Nghe An is selected. Nghe An province
in general and Quy Hop district of Nghe An province in particular is an area where there are
numerous active mines as well as different mining companies of different stature (stateowned, private, nation, local). DONRE is the representative of the state to directly deal with
problems in law related to rights of local people in mining areas
- Work with the People's Committee of Quy Hop district, People's Committee (as
representative of the local people) of Quy Hop Town and a commune of Quy Hop district
and local people to evaluate the situation of policy implementation in recent years. - Work
with and study 3 specific mining companies in Quy Hop district including: Nghe Tinh
Coloured Mental JSC (a state-owned company which mines coloured metals), Phủ Quỳ Rock
JSC (private company which specializes in mining rocks), Yabasi Viet Nam JSC (100%
foreign invested company which mines limestone), to analyse the situation of realizing
responsibility of enterprises to rights of localities and habitants living in mining areas.
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c) Organize a workshop to discuss the draft report and obtain feedback from stakeholder, in
order to recommend revisions of relevant policy or regulatory framework about the right of
people living in mining area.
3.2. Specific responsibilities
National Consultant (NC) (40 days):
1. Work collaboratively with the Associate National Consultants and ensures that the
Team implements the plan of the mission as scheduled. The NC TL shall assure
quality of outputs, and synthesise case study findings, work collaboratively with the
NC, PMU and UNDP to finalise recommendations, draft the Final Report and make
the presentation to stakeholders.
2. Work collaboratively with the NC and the PMU to develop an Inception Report,
which contains a work plan and methodology for undertaking the assignment, plus a
draft Table of Content of Final Report that will be discussed and approved with
DGMV, PMU and UNDP. (3 days)
3. Oversee the work of the NC, and provide interactive feedback during the course of
the study, to ensure the quality of the outcomes delivered on schedule. (3 days)
4. Prepare an analytical framework to be utilised in right analysis of national scale (NC
TL study) and local scale (NC study) mining enterprise activities. (3 days)
5. Review and analyse current laws and policies (in addition to the Mineral Law and
Decision 219) related to rights and responsibility of local people in mineral sector to
assess the legal status, rights and responsibilities of local people and concerned
groups and mechanism for them to undertake their rights and responsibilities.
6. Assisted by the Associate National Consultant, conduct an integrated analysis of
local people's rights in the context of relevant regulatory framework that assesses and
clarifies the state of minerals exploitation with respect to the rights of local people in
mining areas by working with:
- The Department of Natural Resources and Environment of Nghe An
- The People's Committee of Quy Hop district, People's Committee of Quy Hop
Town and a commune and local people of Quy Hop district.
- Enterprises in Quy Hop district including: KLM Nghe Tinh JSC, Phủ Quỳ JSC,
Yabasi Viet Nam JSC to grasp the situation of realizing responsibility of
enterprises to localities and habitants living in mining areas. (15 days)
7. Highlight the key rights issues for different groups associated with various kinds of
mineral exploitation by State, private and foreign-owned enterprise in different areas.
(3 days)
8. Document any model cases of nationally-based or locally-based mineral exploitation
where the rights of local communities and local area government have been
successfully upheld, or where they have been ignored, and the underlying reasons for
success or failure in each case. (3 days)
9. Prepare a draft Final report, giving the background, context and issues of the rights of
local people in mining areas, the results of the different analyses, and providing
suggestions/guidelines for better management/assurance of right of local people as
per the Mineral Law, and present findings to stakeholders for comment. (5 days)
10. Incorporate stakeholder comments and finalise the Report. (5 days)
Associate National Consultant – (NC) (30 days):
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The NC
1. Assist the NC TL in preparing the work plan and work collaboratively to ensure the
success of the assignment, and take direction from the NC TL in carrying out the
specific duties of the mission.
2. Assist the TL to develop an Inception Report, which contains a work plan and
methodology for undertaking the assignment, plus a work plan that will be discussed
and approved by DGMV, PMU and UNDP. (5 days)
3. Conduct an integrated rights analysis in the context of the new Minerals Law that
assesses and clarifies the state of mineral exploitation with respect to the rights of
local people and government (15 days) the impacts of provisions in dealing with
rights of local people and in particular dealing with Decision 219 in mining areas, and
taking gender aspects into consideration. This entails a detailed investigation and
survey with the different stakeholders concerned, in particular:
- The Department of Natural Resources and Environment of Nghe An
- The People's Committee of Quy Hop district, People's Committee of Quy Hop
Town and a commune and local people of Quy Hop district.
- Enterprises in Quy Hop district including: KLM Nghe Tinh JSC, Phủ Quỳ JSC,
Yabasi Viet Nam JSC to grasp the situation of realizing responsibility of
enterprises to localities and habitants living in mining areas. (15 days)
4. Prepare a draft technical report including the analyses of the rights of local people in
the above named province and localities, for the NC TL to use in preparation of the
Final Draft Report for presentation in the Workshop.
(5 days)
5. Assist the NC TL to incorporate stakeholder comments and finalise the Report. (5
days)
4. DELIVERABLES
1. Inception Report, outlining the methodology and work plan of the assignment, and Table
of Content of the final report, approved by DGMV / PMU / UNDP
2. Draft Report, to be presented at workshop setting out findings and recommendations.
3. Completion Report:
a. An integrated right analysis that assesses and clarifies the responsibilities of
stakeholders (government, local authorities, enterprises, individuals) as regards to
the rights of local people, in relation to mineral exploitation, with respect to the
right of local women and men.
b. Identify key right issues for different groups associated with various kinds of
mineral exploitation at different scales in different areas.
c. Note successful or unsuccessful model cases of locally-based mineral exploitation
in upholding rights of men and women, local communities and government.
All deliverables shall be in both Vietnamese and English.
All deliverables shall be in both Vietnamese and English.
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Summary outputs
No
Expert
Outputs
1
NC TL
1. Inception Report, describing the methodology
and work plan of the assignment, plus the
draft of Final Report outline, approved by
PMU, DGMV, UNDP
2. A general analytical framework for the right
analysis.
3. An integrated right analysis that assesses and
clarifies the state of mineral exploitation with
respect to the rights of local people and
government for nation-wide state-owned
mining enterprises and for locally-based
mines.
4. Presentation
of
recommendations
findings
and
5. Final Report incorporating stakeholder
comments in Vietnamese and English
2
NC
1. An integrated right analysis that assesses and
clarifies the state of mineral exploitation with
respect to the rights of local people.
5. METHODOLOGY
The NC TL is responsible for developing the proposed methodology and approaches to
successfully complete all tasks/assignments given in this TOR, a Work plan indicating
schedules and date of outputs, and an outline of the intended final report. This should all be
included in the Inception Report, which will be submitted and approved by the PMU, UNDP,
DGMV at the start of the assignment.
The NC TL and NC shall be supplied with all necessary documents by the PMU and will be
introduced to all concerned parties as required in order to fulfil their responsibilities on
schedule.
The NC TL and NC shall be required to present the findings/results to relevant
agencies/parties in meetings organized by the PMU.
The Project Manager will be the overall supervisor for these assignments, and each local
expert will report to him/her. The NC TL will be responsible for all Consultant coordination
activities with the PMU.
The NC TL shall prepare a common analytical framework that can be used in conducting the
study of national-scale and local-scale mining activities.
To ensure a proper evidence-based analysis is conducted, at least one visit to each site will be
conducted by the NCs.
6. TIME AND DURATION
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Working duration: from June 2015 to November 2015
Submission of Inception Report: June 2015
Submission date of Draft Report: September 2015
Submission date of Final Report: November 2015.
7. QUALIFICATIONS
National Consultant – Team Leader
Education:
- Full- time University Degree in Geology and Minerals or related fields, with second
decree or experience in law and social sciences preferable. Master and Ph.D. Degrees
preferable.
Experience and Competencies:
- Minimum 10 years’ experience working in Geology and Minerals, in particular social
and/or environmental impact analyses.
- Good knowledge and experience of mineral exploitation activities in Viet Nam.
- Good contacts in key Government agencies and the private sector dealing with issues
arising from the social impacts of mineral exploitation.
- Experiences in assessing impacts of mining on community’s legal rights of
Government and community’s resource of mining projects in various regions of Viet
Nam are an advantage.
- Experiences working in international donor-funded projects are an advantage.
Language
- Good oral and written communication skills in Vietnamese and English
Other Desirable skills:
- Adequate computer literacy
- Good interpersonal and presentation skills.
Associate National Consultant
Education:
- Full- time University Degree in Geology and Minerals or similar, with second decree
or experience in law and social sciences preferred.
Experience and Competencies:
- Minimum 10 years’ experience working in Geology and Minerals, in particular social
and/or environmental impact assessments
- Good knowledge of mining activities in Vietnam
- Good knowledge of the social impacts of mining activities and understanding of legal
right protection in Viet Nam.
Language
- Good oral and written communication skills in Vietnamese and English
Other Desirable skills:
- Adequate computer literacy
- Good interpersonal and presentation skills.
8) REVIEW TIME REQUIRED AND PAYMENT TERM
- The first payment of 20% contract value will be paid upon submission of approved
Inception Report by DGMV, PMU and NPD.
The second payment of 40% will be paid upon the submission of draft report, with
satisfactory acceptance by DGMV, PMU and NPD.
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-
The third payment of 40% will be paid upon the completion of final products under the
contract, with satisfactory acceptance by DGMV, PMU and NPD.
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