Robert Goodland, independent environmental consultant for Ikv Pax Christi, “ Best Practice Mining in
Colombia.” This paper, presented to Colombia’s Controlaría General de la República, details how
application of international mining best-practice standards in Responsible Mining could improve the
environmental and social performance of mining operations in Colombia.
1
Best Practice Mining in Colombia
Robert Goodland
RbtGoodland@gmail.com
__
This paper was originally presented at a Best Practice Mining forum sponsored by
Ikv Pax Christi for Colombia’s Controlaria General de la Republica in December 2011.
2
Best Practice Mining in Colombia
“The care and good management of the environment is one of the greatest challenges of our
time. Colombia is a country privileged in terms of environment. There is great opportunity to
advance towards sustainable development which generates employment and new openings into
the long term.”
President Juan Manuel Santos
“Colombia is at an ecological crossroads. The new government has to choose between guarding
its unique ecosystems and boosting its economy with intensive mining. The decision could finally
exhaust or simply recast Colombia's long, agonizing armed conflict.”
pulitzercenter.org/reporting/colombia-gold-mining-industry-deforestation-rainforests-green.
“I have a very strong stance against mining in Colombia. I believe that large-scale mining
operations in Colombia are very negative because there are no legal or social conditions for it.
This does not mean that I am anti-mining. This is simply not the country I want for my children.”
Manuel Rodríguez Becerra, Former Minister of Environment (NSI, 2011).
3
Table of Contents
1.
Global Principles for Best-Practice Mining............................................................................................ 5
2.
Perspective on Mining in Colombia ...................................................................................................... 5
3.
Environment and Regulatory Capacity ................................................................................................. 6
5.
No-Go Zones for Mining...................................................................................................................... 17
6.
Environmental and Social Assessment ............................................................................................... 19
8.
Conclusion: Environmental and Social Governance ........................................................................... 28
Sources of Further Information and Literature Cited ................................................................................. 30
4
1.
Global Principles for Best-Practice Mining
Colombia’s most essential assets – social capital and natural capital – are chronically vulnerable
after a half-century of conflict. In the continuing context of citizen insecurity, social cohesion
and social trust remain fragile. Because social capital is both a prerequisite for development
and poverty reduction, and an indicator of the quality of life, its protection should be a
paramount consideration in all policies including those related to best-practice mining. Bestpractice mining policies should be based on conserving and investing in natural and social
capital and should pay particular attention to managing social and environmental risk.
Effective institutions are the key to implementing best-practice mining. In executing policies,
institutions determine a country’s quality of economic development and natural resource
management. If mining activity expands before effective institutions are in place, serious
problems – corruption, conflict, and pollution – often emerge.
2.
Perspective on Mining in Colombia
If the principles of conservation of natural and social capital, reducing risk, deepening
democracy, and exercising caution are to be given priority, now might not be the best time to
encourage investment in the mining sector. Further work needs to be done in three areas: (1)
building environmental regulatory capacity, (2) building peaceful and democratic solutions to
local conflicts, and (3) reducing poverty and ensuring that the economic benefits of mining
actually accrue to the affected communities.
Under the slogan “Colombia: Mining Land,” Colombia’s National Mining Development Plan
predicts that by 2019, Colombia will be the most important mining country in Latin America.
Indeed, between 2001 and 2009 foreign investment in mining rose more than 500 percent.
Colombia now exports about 75 million tons of coal annually, making it the world’s fourth
largest coal exporter (after Australia, Indonesia, and Russia).1 Colombia’s coal is mainly for
export; most of the country’s domestic energy is from hydropower. In 2010, the mining and oil
sectors contributed 6 percent of GDP and provided almost 50 percent of the country’s total
exports ($8 billion). By the end of the decade, mining is expected to account for nearly 13
percent of GDP. During the administration of former President Alvaro Uribe, the number of
acres with mining concessions increased eightfold, from 2.79 million to 21.08 million (1.13
million to 8.53 million hectares)—to about 4 percent of the national territory.
Because skyrocketing mineral prices have prompted a backlog of 20,000 unprocessed title
requests, covering approximately 20 percent of Colombia, the Government of Colombia (GoC)
is trying to tighten up on regulation. With the price of gold now pushing US$1,800 per ounce,
the government will be pressured to permit more gold mining. Gold is Colombia’s most
important metal. AngloGold Ashanti’s La Colosa mine near Cajamarca, Tolima has reserves of
1
The World Coal Institute.
5
12.9 million ounces. A price of US$1,800 per ounce makes lower-impact underground gold
mining profitable. Gold miners should be forced to use the safer cyanide-leaching-in-tanks (CIL)
method, or non-cyanide methods, rather than the inherently risky cyanide heap leach.
The drawback to the export of raw mineral and agricultural products such as coal, gold, coffee,
oil, and electricity is that there is little scope for domestic processing and value added.
Colombia is basically an exporter of raw materials: more than 81 percent of its exports are
unbeneficiated primary natural resources requiring low inputs of technology. There is little
scope for augmenting conversion of gold into jewelry, or converting coffee beans into instant
coffee powder, for example. Multinational oil corporations do not favor domestic refining of
crude oil into high-value petroleum products. The importers want to capture the domestic
processing and value added benefits. Colombia imports gasoline.
The Cerrejón Coal mine opened in 1976 in the Guajira Peninsula. It has become the biggest
mine in Colombia and the largest open pit mine in the world. It exports more than c.45 bn tons
annually. BHP Billiton, Anglo American PLC and Glencore International AG, each own one third
of the shares; Xstrata PLC bought Glencore's operations in 2006.
3.
Environment and Regulatory Capacity
Given the country’s steep terrain and the toxicity of chemicals used in mining, there is
significant potential for rapid degradation of the water supply. Watershed management,
especially reforestation to protect headwaters, should be of paramount concern in Colombia.
Above all, nothing should be permitted that reduces protective watershed forest cover, or
reduces water quality or quantity.
Most mining leaves large heaps of overburden and waste rock exposed to erosion especially
during violent storms, and is especially of concern in seismically active zones. Most mining also
leaves open waste impoundments or liquid effluent often polluted with toxic chemicals such as
cyanide. Gold mining usually requires large cyanide heap leach piles or tailings impoundments,
similarly exposed to the elements. Storage of large volumes of toxic mining waste behind dams
on the surface all too frequently results in dam rupture and spills of cyanide and other toxins
into the watershed, especially problematic in seismically active Colombia. Unlike water
reservoirs that can be drained when there are leaks or problems, mine waste impoundments
and their associated dams must last in perpetuity. While solid mine wastes might be stored in
the underground workings, underground mines still involve tailings. Given the potential for
poor water quality in open pits, open-pit mining is inherently antithetical to prudent watershed
management.
6
Government Regulatory Capacity
Extractive industries are the first of the five top priorities or “locomotives” of President Juan
Manuel Santos. The last Minister of Finance, José Antonio Ocampo, observes that not one of
Colombia’s mining-dependent regions has developed. For example, la Guajira receives the most
mining royalties, yet is the poorest department along with Chocó and Guainía. More than 65%
of Guajira’s citizens are below the poverty line. Mining creates little employment. Therefore
mining should not be one of the locomotives for the nation. It is absurd that the state should
subsidize mining. But the new Royalty Law (013), expected to enter into force in 2012,
controversially takes royalty management away from the Regional Corporations. That might
reduce corruption but it stalled the new law.
Box 1. Governmental Regulatory Capacity
In 2010, then-president Alvaro Uribe announced immediate mining sector reforms, but little has
happened. In Spring 2011, just 16 government inspectors (along with about 50 outsourced
workers) were in charge of safety enforcement in the country’s more than 6,000 mines. The
figure counts only the legal mines that report to Ingeominas, the Colombian Institute of Geology
and Mining, which was in charge of overseeing safety regulations and granting mining titles. The
government estimates that another 3,000 illegal mines are scattered around the country. The
situation is further complicated by corruption scandals within Ingeominas. In June, press reports
showed that the institute had been giving out large numbers of mining permits to both
multinational companies and individuals without the mandatory requirements being met. The
“feast” in mining licenses led to a black market for permits sold at high prices to investors and
mining companies.
Source: Pulitzercenter.org/reporting/colombia-mining. Ingeominas sought to rectify some of its
shortcomings in October 2011. For example: Ingeominas declared extensive tracts of the Amazon
rainforest as National Security Zones in an attempt to control mining operations. Oscar Paredes,
the president of Ingeominas, noted that more than 10 percent of Colombian Amazonia is
concessioned if all mining requests are taken into account. He acknowledged that there is a
complex problem of overlapping titles and applications in national parks, indigenous reservations,
and "paramos," Neotropical ecosystems above 10,000 feet where mining is prohibited.
Overlapping mining titles, however, have been identified in 37 instances in national parks, and
160 titles have been applied in paramo areas.
The perennial struggle continues between authoritarian growth and the extraction and export
of natural resources by foreign multinationals causing local social and environmental damage
and the alternative vision of environmental conservation, democratic protection of
communities and their resources, and development of value added manufacturing industries.
The asymmetry between government and big business on the one hand, versus protection of
communities and their environment on the other is difficult to redress. Even governments of
highly developed countries find it increasingly difficult and expensive to monitor mining
operations. The challenge for Colombia is, therefore, great, raising doubts over how far the
7
GoC can muster the technical capacity to monitor and enforce prudent mining agreements. At
this point, is GoC sure that it can monitor the mining sector prudently? (See Box 1.)
Even if the government insists on independent third-party monitoring fully paid by the mining
corporations but answerable and reporting only to government, it seems risky for the
government to promote large-scale mining nationwide. Independent third-party monitors will
certainly reveal that governmental institutions in Colombia do not yet have the capacity to
regulate mining. The goal is to conserve the environment for Colombians so that development
can be sustainable over the long term.
Ingeominas used to be the sole source of mining permits. Ingeominas granted these permits
with no thought to likely social and environmental damage, which Ingeominas did not seem to
consider its responsibility. Between 2000 and 2010, Ingeominas granted 1,080 percent more
mining permits covering 5 million hectares. Between 2004 and 2011, Ingeominas’s permits
increased from 2056 to 5903, many in conservation units or paramos (Semana 2011). Some of
these permits were in Paramos, protected forests, national parks, Indigenous Peoples Reserves,
steep slopes, water sources, and other places in which mining is bound to create severe impacts
and which in practically all other countries are strictly off limits to mining (See Section 5: No-Go
Zones to Mining). The Controlaria General de la Republica (2009) concluded that Ingeominas
failed to meet standards of efficiency, effectiveness, economics, equity, and environmental
norms. Carlos Rodado, then Minister of Mines, fostered the debate about the wisdom of
making mining the locomotive for growth in Colombia, especially in view of the risks of La
Colosa, Santurban, and Marmato.
The decision between open-pit and subterranean mining is one of the most powerful ways of
reducing social and environmental impact. Mining corporations prefer open-pit as it is much
cheaper if the social and environmental costs are externalized. If such costs were internalized,
as should be the case in responsible mining, then open-pit mines would be demoted.
In view of the deficiencies of Ingeominas, GoC rescinded its licensing role. Instead, Decreto
3573 of September 2011 created the National Agency for Environmental Licensing (ANLA: la
Agencia Nacional de Licencias Ambientales), an autonomous unit connected with the
environmental sector and with sustainable development.2 A new Ministry of Environment and
Sustainable Development was also created in September 2011.3
2
Some of the pros and cons of this change are outlined in: /www.razonpublica.com/index.php/econom-ysociedad-temas-29/2490-nuevo-ministerio-de-ambiente-y-desarrollo-sostenible-licenciamiento-ambiental.
3
Ley 1444 de 2011 y el Decreto 3570.
8
Democracy, Violence, and Mining
Over the past few years, Colombia
has come a long way in tackling
both poverty4 and violence. The
priority now is to strengthen those
commendable trends.
But
Colombia has not yet fully restored
its fledgling and relatively weak
post-conflict democracy; thus, it is
important to strengthen democracy
wherever possible. This task, in
turn, puts a premium on following
democratic processes wherever
possible and recognizing and acting
on majority views. At the moment,
a full 30 percent of the budget of
the Ministry of Defense is spent on
protecting
foreign
mining
5
corporations
from
impacted
communities. This waste of money
could be greatly reduced by
following Colombian law and best
practices to prevent damaging
impacts that lead to conflict and
violence. Prevention is better than
“cure.”
Box 2. Codes of Conduct and Standards Followed by
Better Mining Corporations
EITI: The Extractive Industries Transparency Initiative Plus Plus.
UNDRIP: The United Nations Declaration on the Rights of
Indigenous Peoples.
IRMA: The Initiative for Responsible Mining Assurance.
UN Convention Against Corruption
UN Precautionary Principle
The Voluntary Principles on Security and Human Rights.
The Equator Principles.
The UN Aarhus Convention
The Extractive Industry Review.
Corporate Social Responsibility.
The UN Global Compact.
The Environmental Liability Directive.
IPIECA Guidance Document on Sustainable Social Investment.
The ECOWAS Directive on the Harmonization of Guiding Principles
and Policies in the Mining Sector.
UN ILO Convention 169: Core Labor Standards.
The International Convention on Economic, Social and Civil Rights.
The International Convention on Elimination of all Forms of Racial
Discrimination.
Convention on the prevention and punishment of the crime of
genocide.
Voluntary Principles on Security and Human Rights.
UN Guiding Principles on Business and Human Rights
The OECD Guidelines for Multinational Enterprises.
The Akwé: Kon Guidelines
International guidelines (see Box 2),6 best practices, and bitter experience7 suggest that it is
inadvisable to proceed with mining in conflict areas, or at least to wait for the conflicts,
4
Though it remains the most unequal country in income distribution in South America, and near the worst in the
world, according to: www.economist.com/node/18587127.
5
About 200 mining companies, especially from Australia and Canada arived in Colombia since 2003.
The final 2003 report of the independent Extractive Industries Review (www.eireview.org) entitled “Striking a
Better Balance” (6 vols) contains best-practice guidelines for the extraction of oil, gas, and minerals. As does
Goodland, 2003. Sustainable Development Sourcebook for the World Bank Group's Extractive Industries Review:
Examining the Social and Environmental Impacts of Oil, Gas and Mining. Washington DC: World Bank, 189 pp.
6
7
The rich and extensive history of warfare sparked by mining conflicts is well exemplified by the people impacted
by Rio Tinto’s Panguna copper mine on Bougainville Island, Papua new Guinea in the late 1980s and early 1990s,
which led to the mine being closed. One of the most egregious cases is recounted in Baumgardt 2006 Chapter 20:
483-516. Thousands of Indigenous People have died at Broken Hill Proprietary-Billiton’s (now BHPB) copper mine,
which has polluted vast areas irreversibly. Details at: BHP Billiton Watch (2010), Threatening lives, the
environment and people’s future, BHP Shadow Report, bhpbillitonwatch.net/bhpbilliton/ bhp-shadow-report-
9
whether or not they are mining related, to die down. New projects, especially in the extractive
industries, often exacerbate pre-existing conflicts. In Colombia, this situation is manifested by
the well-documented history of murders, intimidation, and death threats, especially directed at
anti-mining leaders, protesters’ children, and priests,8 suggesting that current areas of mining
exploration and project development are indeed conflict zones.
It can be argued that such social vulnerability is more serious than any environmental
vulnerability related to mining. While environmental vulnerability might be managed by
technologies, social vulnerability of this sort is far less prone to management.
The case of Peru is illustrative. Only as late as 2008 did Peru create an Environmental Ministry.
Even then the Ministry of Mines and Energy, the executive, and the mining corporations
resisted giving the new Environmental Ministry a meaningful regulatory role. Consequently the
environmental and social assessments of mining proposals are still approved by the Ministry of
Mines and Energy, which is hardly impartial. Monitoring of mining has been given to the
regulatory authority of the energy sector, which has little experience in mining.
Peru offers perhaps the most relevant comparison to Colombia. Peru’s mining boom began
shortly after a 12-15-year period of armed conflict, in a context of significant institutional
weakness (though Peru’s governmental institutions in the mining sector may always have been
stronger than those of Colombia). Levels of social conflict around mining have increased
steadily since the late 1990s, and socio-environmental conflicts have consistently constituted
over half of all registered conflicts. In an attempt to reduce such conflicts, Peru’s newly elected
government has passed a law of free, prior, and informed consent (FPIC). 9
Poverty Reduction, Growth, and Mining
The primary argument for promoting mining in Colombia is that it will lead to poverty
reduction, both directly (e.g. through employment) and indirectly (through fostering
shining-a-light-on-revenue-flows.
8
The most recent case is the opposition, led by Parish Priest Father José Reinel Restrepo, of the 1,200 citizens of
the town of Marmato to forced resettlement by Canada’s Medoro Resources. He was killed in September 2011. On
September 15, MiningWatch, a Canadian organization that keeps track of mining companies, sent an open letter to
the Canadian Embassy in Bogotá, expressing concern that Canadian mining companies “may well be aggravating or
benefiting from violence.”
9
Based on the United Nations Declaration on the Rights of Indigenous Peoples adopted by the General Assembly in
2007, and now ratified by most nations, including Colombia, Canada, USA, and Australia. The international Labor
Organization (ILO) and the InterAmerican Court of Human Rights support free, prior and informed consent (FPIC).
FPIC should be the guiding principle of all economic development. The absence of consent is coercion. The use of
force in developing a project is no longer acceptable. For example, involuntary resettlement means force is being
used to promote development, which is now unacceptable.
10
Box 3. Ancestral & Artisanal Mining
In many communities ancestral, artisanal, and small-scale mining does not use cyanide or leaching. Long the
backbone of some communities' economies, and in line with their own regulations and jurisdiction, ancestral
artisanal mining is more sustainable and less damaging than most industrial mining. Unfortunately,
ancestral mining is essentially being declared illegal, in order to pave the way for large-scale mining. This is
regressive. Although this paper focuses only on industrial mining and excludes ancestral mining, this issue
should be promptly addressed.
sustainable development). There is still too little evidence to conclude that this will be the case.
There are three reasons for this view.
First, under current conditions (of proven and indicated reserves, and existing tax and royalty
rates), the potential economic benefits of mining to the country are modest, and are
outweighed by the risks that mining causes. Economic theory demands that all environmental
and social costs are internalized in assessing the value of an investment. Externalizing costs is a
way for the cost creator (e.g., a mining corporation) to shift costs away from the causal agent
and onto society in general. There is as yet no convincing evidence to refute the argument that
the net value of mining to the GoC would be negative, were the full costs of environmental and
social impacts included in an economic assessment of the sector. If these costs are not
internalized, then the economic analysis must be rejected. Damage and remedial costs from
floods, accidents, spills, post-mining rehabilitation, etc., commonly are not accounted for in
advance.
Second, mining does not automatically translate into poverty reduction and local development.
For this to occur, other mechanisms need to be in place. In general, three potential
mechanisms exist. The first mechanism operates through local employment and other local
multiplier effects that a mining investment might have. The second occurs through the mining
company’s own direct support to community and local development through corporate social
responsibility (CSR) and related initiatives. The third occurs through the investment of tax and
royalty revenue in measures to reduce poverty and foster development.
None of these mechanisms can be taken for granted, and each requires the existence of certain
preconditions such as an adequately trained work force, local labor and service markets
capable of responding to mining’s demands, company capacity to manage effective corporate
social responsibility programs, subnational government capacity to invest tax and royalty
revenues strategically, and a cohesive civil society that (together with government) can agree
on how to invest such resources. There is currently insufficient evidence that these
preconditions exist in Colombia. Thus, there is no reasonable assurance that mining projects
will lead to poverty reduction and local development (even if their net present value were
positive after internalizing all social and environmental costs).
11
Third, few of the mining proponents currently operating in Colombia have demonstrated a
track record of converting mining into economic development.
Box 4: The Status of Colombia’s Coal
Colombia is the world’s fourth biggest coal exporter (after Indonesia, Australia and Russia) from its
proven reserves of 8,000 million tons. The largest coal producer in the country is the Carbones del
Cerrejon consortium (Anglo-American, BHP Billiton, Xstrata, Glencore), which operates the Cerrejon
Zona Norte (CZN) project, largest open-cast coal mine in the world.
Forced displacement, especially of Wayúu vulnerable ethnic minorities and AfroColombians, with little
or no compensation gave Anglo, BHPBilliton and Glencore a bad name. The mining company always
begins by buying up the productive lands surrounding the communities, encircling each community
and destroying its inhabitants' sources of work, pasture, and food.
In addition, massive environmental pollution due to mining activities contributes in the short and long
term to markedly adverse effects on the health of the surrounding communities
(www.cetim.ch/en/interventions/288/violations-des-droits-humains).
Recently, Cerrejon announced plans to divert more than 26 kms of the Rancheria River on which the
Wayuu and AfroColombianos totally depend. The World Bank group financially supports one of the
biggest coal-mining corporations, Drummond of Alabama, although it is embroiled in lawsuits that
document charges that Drummond paid paramilitaries to kill and to terrorize innocent residents.
Much of Colombia’s coal is exported to Europe, which is trying to reduce its greenhouse gas emissions.
How long will it be before Europe starts to displace coal imports in order to reduce climate change
risks?
12
Box 5: The Status of Colombia’s Gold
Because gold prices have surged over $1660/ounce, ores recently deemed too lean to exploit, such as
Colombia’s 10 million ounces of reserves, suddenly have become irresistible.
AngloGold Ashanti, the world’s third biggest gold producer, and the Canadian Graystar (now
rebranded “EcoOro”) seek licenses now stalled by environmental concerns. Vancouver-based Greystar
controls 3,539 ha of surface rights and some 30,000 ha of mineral rights. AngloGold Ashanti has
somehow acquired tenements to 61,700 km2 of land, including La Colosa mine in Tolima, said to have
the potential to be the biggest gold mine in the world. Anglo Gold now claims most of this area will
be returned eventually to the defunct Ingeominas.
The Berne Declaration and Greenpeace awarded AngloGold the Public Eye award of 2011, dubbed the
‘most irresponsible company in the world’ in view of the grave and irreversible social and
environmental problems it caused in Ghana. Concerns are increasing about tonnages of cyanide to be
used, (possibly in the less risky closed-circuit technology), a forest reserve, and pollution and damming
up of the Coello and Combeima Rivers, which water seven municipalities.
Eco Oro reversed its open-pit plans in October 2011, and has now decided to develop the Angostura
(Santurban) gold and silver mine in the Paramo as an underground-only operation in order to reduce
its footprint in light of the protests that the open-pit mine would have harmed water resources that
supply 2.2 million inhabitants. Law 1382 of 2010 amended Article 34 of the Mining Code to forbid
mining in Paramos. Climate-connections.org/2011/01/26/greystars-threat-to-colombia/ states:
“Colombian leaders will do anything except solving the structural problems of injustice.”
GranColombia Gold (formerly Colombia Goldfields) plans to use cyanide to extract the 0.9 gms of gold
per ton from Marmato in Caldas, which was declared Monumento Histórico Nacional on March 2,
1982.
The mine means that much of the Marmato community will have to be displaced. 68% of the gold is
consumed by India mainly for dowries and adornment. Much of the rest goes to China. Only 18% is
used for electronics.
13
Box 6: Cyanide: The Common but Highly Toxic Gold-Mining Chemical
Cyanide is used in most gold and silver mining projects. One kg of sodium cyanide per ton of finely
ground ore is often sprayed on a heap of ore, where it dissolves gold. The liquor contains gold, which
is separated from the solid ore. Gold is then separated out of the liquor. The cyanide also can
mobilize heavy metals if they are present in the gold ore. Using cyanide on closed-circuit tanks is less
risky but not often done because it is more expensive for the miners.
The "International Cyanide Management Code For The Manufacture, Transport and Use of Cyanide In
The Production of Gold" (Cyanide Code) is a voluntary industry program to reduce poisoning through
auditing by an independent third party. A teaspoonful of 2% cyanide can kill a human adult. According
to scientists, concentrations as low as 5 ppb in river waters can inhibit fish reproduction. Release or
spillage of cyanide-containing waste kills fish for many kilometers downstream. The cyanide spill on
Jan. 31, 2000 along the Tisza tributary of the Danube from the Aurul gold plant in Romania’s BaiaMare killed fish for 150 km downstream. In 1995, the Omai Gold Mine released a major spill of cyanide
and heavy metals into the Essequibo River, Guyana's main river. The disaster killed countless fish, the
main food supply for people living along the river. The President declared a 50-mile stretch of the river
an environmental disaster zone.
Fortunately cyanide, because it is so dangerous, has been banned by many nations and jurisdictions.
(See: Moran, 1998, 2001).
Box 7: Mercury: A Common but Risky Chemical Used in Gold Mining
Mercury, a liquid metal, bonds with gold forming an amalgam used to separate gold from gravel/water
mixtures. Most mercury compounds are highly toxic. Mercury persists in the ecosystem for decades
and is cumulative. It may form methyl-mercury, which is absorbed by fish. Young fish may have traces
of mercury but older carnivorous fish accumulate concentrations that would kill if the fish were eaten.
Colombia is the world’s highest per capita mercury polluter due to artisanal gold mining, releasing 130
tonnes of mercury annually into the environment. Globally, artisanal gold miners are responsible for
contaminating air, land, and water systems with 1,000 tonnes of mercury each year. Colombia’s
Segovia, Remedios and Zaragoza contain the highest levels of mercury according to UNIDO and the
World Health Organization (See: Marcello Veiga: www.publicaffairs.ubc.ca/2012/02/01/toxic-goldrush/; Cordy et al. 2011). The main victims are poverty-stricken artisanal miners.
14
4.
The Option of a Moratorium on Mining
Among the policy options being actively considered in Peru, Costa Rica, the Philippines, El
Salvador, and elsewhere is that of a moratorium on mining (see Davis and Tilton 2002).10
Ecuador enacted a mining moratorium three years ago and moratoriums were recently called
for in Panama and Guatemala. In January 2011, Panama’s vice president Juan Carlos Varela
called for a national moratorium on mining concessions. In July 2010, Guatemalans and UN
Special Rapporteur for Indigenous Rights, James Anaya, called for an immediate moratorium on
further mining activities on indigenous lands.
GoC’s free-trade talks with China may become stuck over mining moratoria. In October 2011,
President Juan Manuel Santos announced a moratorium on offshore drilling around the San
Andres archipelago, namely San Andres, Providencia, and Santa Catalina, the only Anglophonic
part of Colombia.
A mining moratorium is being discussed unofficially in some circles in Colombia. For example, in
April 2011, GoC issued a six-month moratorium on new applications for licensing of mineral
rights. The moratorium was enacted in order for GoC to get reorganized and gain more control
over the new gold rush. Carlos Rodado, the mining minister noted, “State institutions in charge
of mining issues are totally overburdened by the growth of mining requests.” 11 In response,
the ministry extended a moratorium on mining-concession requests until at least February
2012.
Commendably, the Colombian Constitutional Court struck down a draft mining code in May
2011 for lack of consultation and FPIC with Indigenous Peoples; the GoC has two years to bring
it into shape, but in the meantime the old, regressive code remains in place. The 2009-2010
mining code included a provision to prohibit mining in the national parks, paramos, and Ramsar
Convention wetlands, but few agencies seem aware of its significance. Although Law 1382 did
recognize the need to strike a balance between development and the protection of Indigenous
rights, it opened up some worrying loopholes. The reform contained new environmental
restrictions, such as a ban on mining in the fragile highland ecosystems; but it also favored
applications from companies with economic and technical advantages. For example, it allowed
10
A comparison with Costa Rica is illustrative. Canada’s Infinito Gold (aka Vanessa Ventures) project would destroy
500 acres of rainforest in the UN Agua y Paz Biosphere Reserve and threatens the San Juan River shared with
Nicaragua, with an open pit mine. Lengthy community pressure failed to deter Infinito. A community march from
San Jose to the mine site and a hunger strike led to the courts annulling Infinito’s Las Crucitas contract in
November 2010. In January 2011, Infinito filed an appeal with the Supreme Court’s Civil and Administrative Law
Branch against the landmark court ruling in November that struck down the company’s open-pit gold mining
project at Las Crucitas. The government of Costa Rica issued a decree in May 2010 imposing an indefinite
moratorium on all forms of gold mining. The moratorium will apply to gold metal “exploration, exploitation and
benefitting from materials extracted using cyanide or mercury.” Laura Chinchilla, the new president, thus “closed
the door to other mining projects which were being reviewed for approval.”
Small-scale artisanal and
underground mining not using cyanide or mercury may be exempted.
11
americasquarterly. org/node/3040
15
Special Reserve Zones (protected environmental or ethnic territories) to be developed for
major strategic mineral projects when Colombia’s Mines and Energy Planning Unit and the
Ministry’s Mining Institute (Ingeominas) identified such projects as critical for potential mining
investment. These operations would most likely be large-scale projects aimed at polymetallic
deposits that contain gold, copper, nickel, molybdenum, and coal.
Overall, the focus on large-scale mining favors multinationals over local mining companies. But
large mining developments displace the subsistence artisanal mining practiced by large
numbers of Indigenous and Afro-Colombian populations by excluding them from the larger
concession zones.
At this point, a moratorium may be the most prudent option to pursue. A moratorium does not
imply permanent prohibition; it does imply suspension of all activities until certain conditions
are met that guarantee that risks and adverse cost/benefit assessments outlined earlier can be
managed and/or reversed.
A moratorium does not come without risks, however. The most serious risk is that of legal
action by companies. In an egregious example, two mining corporations have resorted to
taking out lawsuits against the Government of El Salvador (see Box 4).
If Colombia does not put in place proper social and environmental safeguards, its coal exports
could be banned from the European market as “blood coal,” as it has been called in the Dutch
parliament. As the Netherlands is the second biggest importer of Colombian coal (after the
USA), a wide-ranging majority in the Netherland’s Lower House wants to force power
companies by law to clarify where they get their coal. The parliament found that Dutch power
companies were importing ‘blood coal’ from South Africa and Colombia and, in doing so, were
partly to blame for major human rights violations and murder. The Netherlands currently has
six coal-fired electricity plants, with a total production capacity of 3,865 megawatts. They
contribute about 40% of total Dutch electricity production.
Box 8. Legal Actions to Force Governments to Permit Mining
In 2008, Pacific Rim Corporation filed a claim with the International Center for the Settlement of Investment
Disputes (ICSID) under the Central America Free Trade Agreement (CAFTA), demanding $70 million in
compensation for damages against the Salvadoran Government. That claim is currently being reviewed.
ICSID dismissed the 2010 lawsuit filed against the government of El Salvador by Commerce Group and San
Sebastian Gold Mines Corporation, alleging breaches of CAFTA similar to those involved in the Pacific Rim
suit. Similarly Bear Creek Silver Corporation filed a constitutional injunction in Peru for the cancellation of its
Santa Ana concessions. Fernandez and Valencia (2010) conclude: “It is absolutely reprehensible and
repugnant that the foreign companies that created the right to violate the rules of Colombia and, once
attention of their criminal conduct is exposed, they concoct the (spurious) argument that it is against
(national economic) development.”
16
As soon a climate change starts to be taken seriously, coal will be the first fuel to be reduced.12
5.
No-Go Zones for Mining
The most severe impacts of Colombian mining are the corporate maneuverings to reduce
payment of royalties, taking advantage of weak governance, obtaining extensions of tax
holidays, subsidies, and rebates. Intimidation, corruption (blackmail, bribery, extortion), hiding
data on health damage etc have been known. The revolving door between the governmental
regulatory officials and high posts in mining corporations is well known in many countries. 13 In
La Guajira, more than 40% of the people are Indigenous. The lands of the vulnerable ethnic
minority Wayúu are expropriated under questionable circumstances.
Frank Joseph Pearl González, the new (since 2011) and first Minister of Environment and
Sustainable Development emphasizes that Colombia cannot mine in protected areas. Possibly
the single most effective improvement in the mining sector is for corporations to fully respect
No-Go Zones for mining. Five types of environmentally sensitive areas, which are most valuable
when intact, and whose value would be jeopardized by extractive industries are given special
consideration in mining regulations.14 If the potentially affected communities reject the project
on these categories of lands, the area would be off-limits to mining. Meaningfully informed,
prior consent is a precondition for licensing mining operations. An important proviso is that
offsets can be more valuable for local communities and even for conservation, so the possibility
of trade-offs is available in certain cases. The five main types of areas off limits to mining are:
1. Indigenous Peoples Reserves: Areas in which Indigenous Peoples live, or on which they
depend. Amerindian reserves, Indigenous Peoples, tribal people, forest dwellers,
12
In July, 2010, the documentary film on coal entitled “Energiebedrijven medeplichtig aan moord’ (‘Energy
companies dependent on death’ in English, or ‘Carbon manchado de Sangre’ in Spanish), was shown in the
Netherlands’ TV channel Netwerk. Stark realities of the conflicts in Colombia and its links with coal, outraged the
Dutch public, and fuelled intense debate in Parliament on holding companies to account, and making transparent
the strife behind the coal fuelling electricity generation. Consumers in Holland and others are pushing certification
as a means to ensure products are fairly produced and traded. (See: Weitzner, 2012).
13
For example: MPX contracted Leyla Rojas, ex-viceminister of Water since 2010, as their legal chief. Diana Zapata
Pérez, ex- director de environmental licensing of the Ministry is now on MPX’s team, as is Adriana Rodríguez, the
Minister’s ex-advisor. Ingeominas’s director, Julián Villarruel, switched to AngloGold Ashanti, which has 550.000
hectres of mining titles and has applied for 2,000,000 ha. more. Ex-Chancellor, María Consuelo Araújo is now
President of Gran Colombia Gold Company, now merged with Medoro. Gloria Lucía Álvarez, formerly director of
CAR of Cundinamarca (2007), has become AngloGold Ashanti’s new legal advisor. Ex-Mines Minister, Hernán
Martínez, is on Medoro Resources Board (www.kienyke.com/2011/07/15/).
14
Based on SINAP: Sistema Nacional de Areas Protegidas, IUCN, The Forest Stewardship Council, and the World
Bank Group definitions of sensitive areas and high conservation value areas. See also: “World Heritage and Mining”
IUCN/ICME. Plse add to bibliography
17
vulnerable ethnic minorities, Afro-Colombianos, Afro-Descendents, Palenqueros, Raizales
and Rom.15 About 30% of Colombian land is occupied by Indigenous Peoples.
2. Conflict Zones: Areas of social conflict, especially armed conflict, which still afflicts much of
Colombia. Colombia may be entering a post-conflict era, but there is still a long way to go.
Land grabbing and illegal expansion of mining, cattle ranching, and oil palm plantations still
are fuelled by violence.
3. Fragile Watersheds: such as those protecting a dependent project downstream (Box 5).
Riparian ecosystems important for conserving riparian services. Watershed conserving
water for irrigation or intensive agriculture below.16 Any mining activity is illegal within 600
meters of any source of water (Mining Code Law 685). Therefore, all Paramos should be off
limits to mining because conservation of the 2 percent of national territory now in Paramos
(high altitude wetlands and humedales) would conserve and enhance the five rivers
supplying water to 70 percent of Colombians.17 Areas with active seismicity should be
avoided for mining because of the risk that toxic lagoons and heaps of mine wastes will
rupture or leak. The Galeras, Nevado del Huila and Purace watersheds are especially risky
tectonically.
15
For example, Canadian Cosigo Resources was granted a mining title just two days after the official creation of
the 2.6 million acre National Park “Yaigojé Apaporis” in Vaupes, and Amazonas – a matter now being adjudicated
by the attorney general's office – and it appears that the company is behind 23 other applications for mining
exploration around Yaigojé Apaporis, which is a national park and an official Indigenous Reserve.
www.gaiafoundation.org/.../yaigojé-apaporis-endangered-gold-mining. The public prosecutor has filed disciplinary
processes against eight public officials from Ingeominas who granted the concession.
www.minesandcommunities.org/article.php?a=11057.
16
In March 2011, Colombia rejected Greystar Resources Ltd. proposed $1 billion gold/silver mine, because of
environmental concerns and the fact that it is in a critical watershed, according to Mines and Energy Minister
Carlos Rodado.
Canadian mining company Eco Oro (formerly Greystar) redesigned the Angostura gold and silver mining project
to become an underground-only operation. The announcement was made following the decision to withdraw its
open-pit proposal, due to protests that the project may harm water resources that supply 2.2 million inhabitants.
According to Business News Americas, the Angostura projects were to have processing plants located at between
11,000 and 12,500 feet above sea level for their open-pit mine. Areas above 10,000 feet are considered by
Colombian law to be "paramos," neotropical ecosystems where mining is prohibited. At the same time, the La
Colosa mining project funded by South African company AngloGold Ashanti has faced setbacks due to violations of
local water regulations. The La Colosa project will be delayed until 2018, two years later than the planned
completion date of 2016. It is also set to cost much more than originally expected, costing $3.5 billion instead of
the previously expected $2.7 billion. Commenting on the projects, Colombia's Environment and Sustainable
Development Minister Frank Pearl said, "In each case, we will go into depth; we will have a direct dialogue with the
communities and the private sector to determine what standards - if they are possible - will be used in these
projects and in this economic activity." On October 14, some 10,000 people marched in protest against the La
Colosa mine project for its exploitation of Colombian land by multinationals. See colombiareports.com/colombianews/economy/19908-colombia-mining-projects-delayed
9
18
4. Biodiversity, Habitats and Wildlands: Areas of high biodiversity and endemism, rare or
endangered species, rare habitats, and intactness (e.g., coral reefs, tropical rain forest,
remaining old growth, biological hotspots, and wilderness, as defined by World Bank Group
policies on “Natural Habitats,” “Forests,” “Indigenous Peoples,” “Cultural Property,”
“Involuntary Resettlement,” etc.) This includes all conservation units, such as National
Parks, state or provincial parks, UN Biosphere Reserves, World Heritage Sites, areas
scheduled for inclusion in the national system of conservation units (e.g., La Macuira,
Cahuinari, Nevado Huila, Purace, and Pani National Parks), protected forests, UN Ramsar
Convention wetland sites, as well as their buffer zones. Most mangroves and old-growth
tropical forests should be included.
5. Cultural Property For example, an
indigenous peoples religious site;
sacred
groves,
battlefields,
archeological sites, petroglyphs, or
rich fossil sites. Note: there may
conceivably be exceptions, for
example, when a compensatory
reserve is purchased with funding
in perpetuity by the mining
proponent
which
is
unambiguously better in size and
contents than the area sought for
the mine.
6.
Box 9. The Massif of Colombia
Colombia’s Massif, a group of Andean mountains above 2,600 meters in
south central Colombia, mainly within the area of the Cauca, Huila, and
Nariño Departments, include 13,716 square kilometers of forests, and
2,567 square kilometers of páramos. The Massif is the source of 70 percent
of Colombia’s water. The headwaters of five of the nation’s biggest rivers
arise here: the Magdalena and Cauca Rivers, the Caquetá and Putumayo
Rivers (Amazon Basin) and the Patía River. Conservation of this Massif
would safeguard the nation’s biodiversity, its water supply especially for
irrigation and fish, and the ancestral domains of Indigenous Peoples and
Afro-Colombians.
Environmental and Social Assessment
Environmental and Social Assessment (ESA)18 is tightly linked to the “project cycle” from
project identification, through (pre-) feasibility or project preparation, to construction,
operation and decommissioning (See Table 1). ESA is often the main or the only way of
ascertaining whether a proposed project will be a high-impact project or a low-impact project.
ESA is an opportunity to identify the most severe impacts and to prevent or mitigate them to
acceptable level.
18
A more complete treatment of the exceptionally useful tool of ESA in rejecting high-impact mining proposals and
promoting low-impact proposals may be found in:
Goodland, R. 2008. www.accessinitiative.org/
.../environmental-and-social-assessment-memo: 54 pp.
19
Table 1. How ESA Relates to Standard Phases of a Project
Standard Phases of a Project
Sectoral studies
Standard Phases of ESA
Historically little environmental input, but “sectoral
environmental assessment” is gaining ground in development
circles.
Project selection and identification ESA screening
Project
preparation,
(pre-) ESA scoping; then ESA process begins
feasibility
Appraisal, approval to go ahead
ESA’s mitigation plan becomes part of project
Construction
ESA mitigation plan implemented
Operation
ESA mitigation plan continues
Decommissioning
ESA decommissioning plan implemented
ESA Screening
As soon as the project is identified, the ESA process begins with screening, which is a type of
triage to tailor the level of ESA commensurate with the potential impacts. Screening depends
on the likely significance of the impacts, and is done according to the severity of the potential
impacts. The determination of significance of impacts is based on prior experience with projects
of the proposed type. Many governments and other entities have issued lists of significance of
impacts or illustrative examples of which projects should be assigned to which environmental
assessment category. Significance depends partly on magnitude, severity, irreversibility, and
the number of people who may be affected. The views of potentially impacted stakeholders are
taken into account, as are the professional opinions of the environmental authorities. A total
project cost of about US$10 million is the increasingly accepted international standard
threshold for a full ESA, now widespread, adopted by the more than 50 international private
banks adhering to the Equator Principles for project finance.
If the project is screened as a major infrastructure or mining project, then a team of ESA
practitioners, experienced in that sector and the geographic area or the ecosystem of the
proposed project, is engaged. The ESA team is expected to be as independent as possible from
the project proponent who is paying for their services. There are strong pressures for the ESA
team not to highlight major impacts but rather to downplay them, and to not to be as thorough
as professionally necessary, in order to keep the ESA process as short and low cost as possible.
This is where “greenwash” is most frequent. ESA consultants make their living by undertaking
ESAs for proponents. ESA teams will get fewer consultancies from proponents by being
hardliners and thorough, than if they are malleable and willing to gloss over some impacts and
cut some corners.
It is not easy to muster an independent ESA team. There has to be a series of five checks and
balances in place to foster independence and reduce bias. The first check is in the selection of
the ESA team. A team should be selected based on its track record for independence in
20
previous projects. Second, are the views of the Ministry’s Environmental and Social Unit (E&S
Unit). Third, are the views of the financier’s E&S Unit. Fourth, are the views of the Panel of
Experts (PoE) on the independence of the potential ESA team. Fifth, is the grievance mechanism
that needs to be in place as soon as stakeholder identification and screening begin. The ESA
team’s first job is to corroborate the screening category. Once the screening category is
confirmed as an A, then ESA scoping begins.
ESA Scoping
Scoping is a process designed to promote agreement on which key issues should be tackled by
the ESA. A rapid environmental reconnaissance is often done to identify the key issues. The
reconnaissance may take a week or so of work by one or two experienced professional
generalists. Scoping and the reconnaissance are often the first opportunities for public
participation in the project itself. Reconnaissance should start obtaining the views of
potentially impacted stakeholders in the vicinity of the project.
Best-practice scoping of the ESA culminates with a list of potential impacts, issues, and
concerns with which the potentially impacted stakeholders agree. Ranking the issues in an
order of significance improves the ESA process by assigning more attention to the most
significant topics and less attention to less important topics. Scoping ends with the terms of
reference (ToR) which designs the ESA process for the next couple of years or so. Scoping
determines what disciplines will be needed for the ESA and agrees on what studies the ESA will
undertake. For example, if public health may be risked by an influx of malaria or HIV/AIDS, then
public health specialists will be needed for the ESA team and a health impact assessment will
become a key part of the ESA. If impacts on communities or even resettlement seem likely,
then social scientists will be required on the ESA team. The ESA team is hired with adequate
representation from the disciplines needed.
Scoping ends with agreement on the terms of reference between (a) the project sponsor
(especially its in-house E&S Unit), (b) the national or provincial environmental authorities, (c)
the project financiers, (d) the potentially impacted stakeholders, and (e) the ESA team. This
ToR is an agreement on how the ESA will be conducted over the next 24 months or so.
The Environmental and Social Management Plan
A project’s environmental management plan (EMP), sometimes known as an “action plan,”
normally one of the last chapters of the ESA, is the most important element of the ESA. The
EMP consists of the set of prevention, mitigation, compensation, monitoring, and institutional
measures to be implemented during construction, operation, and decommissioning to
eliminate adverse environmental and social impacts, offset them, or reduce them to acceptable
levels. Remediation of existing environmental problems may be more important than
mitigation of predicted future impacts; in such cases the EMP designs cost-effective measures
to remedy such problems (e.g., restoration of abandoned mines or tailings dumps). The EMP
includes the actions needed to implement the mitigating measures. EMPs are essential
21
elements for major ESAs, such as of industrial mining. The mitigation noted in the EMP must be
included as binding conditions of loan covenants, and become the basis of the impact-benefit
agreement (IBA).
To prepare the EMP, the proponent and its ESA team must: (a) design the set of preventive or
mitigating measures for the potentially adverse impacts; (b) determine requirements for
ensuring that the mitigating measures are made effectively and in a timely manner; and (c)
describe the means for meeting those requirements. The EMP includes mitigation, monitoring,
capacity strengthening, implementation schedule and integration with the overall project as
outlined below.
Mitigation
The EMP identifies and designs measures to reduce potentially significant adverse
environmental impacts to acceptable levels. The plan includes compensatory measures if
mitigation measures are not feasible, cost-effective, or sufficient. Specifically, the EMP:




Identifies and summarizes all anticipated significant adverse environmental impacts
(including those involving indigenous peoples or involuntary resettlement).
Designs or describes the technical details of each mitigation measure, including the type of
impact to which it relates and the conditions under which it is required (e.g., continuously
or in the event of contingencies), together with equipment descriptions and operating
procedures.
Assesses any potential environmental impacts of these measures.
Provides linkage with any other mitigation plans (e.g., for involuntary resettlement,
Indigenous Peoples, or cultural property) required for the project.
Public Participation and Disclosure
The goal of public participation is to foster agreement on the proposed project so that
everything is voluntary and there is no coercion. FPIC is a good way of achieving agreement
and preventing the use of force. FPIC prevents trickery, mainly by any mining companies who
try to buy consent by donating a few footballs or other “gifts.” Information reduces the normal
gross asymmetry of power between mining companies and impacted people, augments
transparency, and reduces the potential for fraud, deceit, and scams. For projects with
potentially significant adverse impacts, public consultation and disclosure must occur at least
three times: first, during the scoping process, marking the beginning of the ESA process;
second, as soon as the draft ESA becomes available; and third, after release of the final EIA.
However, using only these three points of consultation and disclosure is now considered
inadequate. As outlined below, participation of potentially affected stakeholders is a process
that starts as soon as the project is identified, extends through design, construction, and
operation, and ends when decommissioning and restoration are complete. Public participation
22
in project design and the ESA process differ greatly among sectors, type of project, and political
practices in each country. Best practice is for the project sponsor’s E&S Unit to see that all
stakeholders are identified reliably as soon as the project has been identified. Stakeholders
excluded can and should complain, which would suggest the proponent is not following best
practice, in which case its social license would diminish.
Box 10. Pueblos Indigenas, Comunidades Negras, AfroColombianos, Palenqueros,
Raizales, y Rom
Colombia’s 1991 Constitution and many subsequent Colombian laws* specifically provide for vulnerable ethnic
minorities, including Indigenous Peoples (Amerindians) and Afro-Colombians. Other nations support their
ethnic minorities from a branch of the environmental ministry or from an agricultural ministry or other
authority. Because ethnic minorities usually conserve the ecosystems – often forest – in which they live, many
governments see them as guardians of the environment. Mining is not permitted in lands used or occupied by
ethnic minorities or in their buffer zones. Colombia mandated prior consultation, ratified ILO’s Convention 169
early on, and has now ratified UNDRIP’s FPIC. Ambientales ASOCARs, Ministerio de Minas y Energia, and El
Servicio Minero del Instituto Colombiano de Geología y Minería (Ingeominas) should especially be involved.
(See: NSI, 2011).
Note: * Law 21, 1991, Decreto 1320, 1998 & Resolution 3598 of 2008 re the Ministries of Justice and Interior.
It is not always obvious who all the stakeholders may be, so a systematic effort at stakeholder
identification is necessary. The term “stakeholder” here means mainly potentially impacted
people. The government entity regulating the project is an ex-officio stakeholder, as is the
company or government agency building the project. Some stakeholders are easy to identify,
such as a village that must be resettled to make way for a mining project. Other stakeholders,
often advocates for impacted people or vulnerable groups, may be civil society organizations
(CSOs) critical of the project. Stakeholders, who are frequently overlooked, include forest
dwellers, vulnerable ethnic minorities, or Indigenous Peoples, who may use the project site
sporadically or seasonally and who are often reclusive. Such societies in some countries have
made it quite clear that they wish to be left totally alone and not contacted by the government
or project sponsors. Indigenous Peoples merit special care in such cases. They are often so
vulnerable that some governments decline permission for a project to go ahead if they are
involved. Best practice is to leave Indigenous Peoples alone, and re-site the project elsewhere.
This approach prevents serious problems later on.
Public participation begins with screening and scoping and continues throughout the ESA
process. Best practice is for the ESA team or the E&S Unit to brief the potentially impacted
stakeholders periodically on the ESA or to invite them to accompany the ESA process as it
unfolds. Often people living in or near a project site may be hired to work on the project itself,
with the caveat that the promise of employment in the project must never be used as a way of
silencing community concerns. The key point is that stakeholders must be familiar with the ESA
process so that when the draft ESA report is ready, the impacted people are already familiar
with how it was produced. Giving a draft ESA report to anyone unfamiliar with the ESA process
and expecting them to comment on it – or even to approve it – is a recipe for disaster and
raises grave risks.
23
The next big event in the public participation process is that the draft ESA report is given to or
made accessible to all stakeholders – including potentially impacted people, government, and
financiers – who are expected to approve it or not. A stakeholder may condition his or her
approval on certain changes to the project, which need to be agreed to by project sponsors.
Assuming stakeholders or their representatives or leaders or advocates approve the ESA, good
practice is to extract the mitigation plan from the ESA and convert it into an ImpactCompensation Contract (ICC) also called an Impact-Benefit Agreement (IBA), which codifies into
a single judicial contract all the mitigating measures, compensation, allocation of benefits,
offsets, performance bonds, insurance, grievance mechanisms, and redress and systems of
penalties. Project sponsors and affected stakeholders then sign this legal document, to
document that FPIC has been achieved.
In some countries, the agreements are incorporated into the project-approval decisions; in
others, public comments are taken into account in formulating the project approval decisions
and attached conditions. The conditions flow either from the “contract” or from “legal
statutory authority.” Either way, stakeholder agreements and concerns are incorporated into a
legally enforceable project approval. If the potentially impacted stakeholders approve the ESA
and sign the ICC or IBA, then that constitutes free prior and informed consent.
Screening the Mining Proponent and Proposal
After planning, protective regulations, and institutional capacity are in place, and social issues
related to mining are more favorable, the GoC can begin evaluating mining proponents and
proposals. Mining companies espousing most or all of the widely accepted codes of conduct
(see Box 2) should be prequalified to seek mining permits. Companies not following such codes
should be denied prequalification.
Encourage Best Practice Corporations
Possibly the thorniest problem for Mauricio Cárdenas Santa Maria, Minister of Mines and
Energy, is fostering agreement between Colombian society, mining corporations and
environmentalists. Strengthening governance to foster compliance with national laws and to
punish violators certainly will be part. Another part of the solution is to encourage Best Practice
corporations and discourage the weaker corporations. As part of the project evaluation
process, a hierarchy of potentially acceptable mining approaches could be established. For
industrial mining projects, an example of an ideal project could include:
1. The company has attained a high level of environmental and social integrity and
transparency with the communities and government at its other mines around the
world.
2. The operation minimizes water and energy use and includes the use of alternative
energy in its operations.
24
3. Areas of high risk/vulnerability are not present in the proposed project area and no
large tailings dams are proposed.
4. The operation uses solely underground extraction of ore with 100 percent backfill of
workings with waste rock.
5. Processing of the ore is planned at an off-site, consolidated facility that incorporates
pollution prevention and control measures.
6. The company promotes value added and domestic processing as well as domestic
procurement.
7. The company fully embraces FPIC and IL’s Convention 169.
8. Local citizens are trained in mining, monitoring, and workmanship with the extracted
product.
9. There is a high level of community participation at the earliest stages of the proposed
project; the community has been informed about the project, understands the
implications of the project, and consents to the project; this situation meets the United
Nations FPIC as well as ILO’s Convention 169, which, in this case, should be applied to all
Colombian citizens.
10. Pollution prevention and adaptive management plans are included that would minimize
releases of toxic substances and call for modification of mining operations if problems
occur.
11. The company fully accepts the “polluter pays” principle.
12. The proponent has commonly used meaningful performance bonds and/or industrial
insurance. The performance bond is best placed in an escrow account that can be
readily accessed if the mining corporation declares bankruptcy or sells to a junior or
walks away following exhaustion of the mine in question. The bond held in the escrow
account, for example, would pay for decommissioning costs. Performance bonds should
be agreed on before construction as part of the permitting process and should be
reviewed annually and kept up to date. Decommissioning must be agreed in general
terms before permitting exploration. Sources of limestone (to neutralize acid mine
drainage and help control cyanide) should be located nearby.
13. The proponent commonly uses third-party independent monitors. For gold, Fairtrade
and Fairmined, known as “Flo-Certification” promote responsible mining.
Discourage Questionable Corporations
At the other end of the spectrum, an undesirable mining project could contain the following
characteristics:
1. Excessive use of water or energy reducing the availability of such resources for local
populations.
2. The project site has been identified as high risk, or is in an area that is highly vulnerable
to climate change or social conflict, and the proposed project would directly and
adversely affect water quality or quantity in critical watersheds.
3. The proposed project calls for open-pit extraction with no backfill.
4. Community violence against the operation or the company, or vice versa, such as when
the mining corporation hires mercenaries or even the national army to keep
25
communities obedient and docile. Conflict with the community around a company´s
operation tends to happen when a proper FPIC process was not followed. In Colombia,
community members have nonviolently voiced opposition or concern, but then were
violently threatened or attacked. Mining corporations may collaborate with illegal
armed groups, which are often used to intimidate community members into agreeing to
projects, or into going along with changes, or even to displace people so their land
becomes “available” for mining.
5. No commitment to preventing pollution, respecting human rights, or modifying
operations or behavior to adapt to concerns during or after mining.
Given the high level of violence surrounding mining issues in Colombia and the current lack of
institutional strength, significant changes are needed before mining could make a meaningful
contribution to sustainable development in the country. Colombia has a chance to “do it right”
by focusing on regional planning, institutional strengthening, punishing violations of the law,
environmental education of its citizens, and scientific rigor in environmental decision making.
Such an approach would encourage only the best actors in the mining industry to apply for
permits. If companies fully meet the prudentiary conditions established by the government,
such as those discussed above, they should be encouraged to conduct their operations in
Colombia.
Ingeominas, the Colombian Institute of Geology and Mining, which was – until September 2011
– in charge of overseeing safety regulations and granting mining titles (Box 7) and Ministerio de
Minas y Energía should screen all interested mining corporations based on the above criteria to
weed out companies with unacceptable track records, while encouraging those with good track
records. All draft applications for mining permits received by Ingeominas and now ANCLA
should be automatically distributed to the environmental authorities, to the new and effective
Environmental Ministry, and to Autonomous Regional Corporations (CARs), as well as to
potentially impacted stakeholders. The environmental authorities should convene an
interministerial coordination committee to scrutinize draft applications, get the ESA off to a
reliable start, and review it when it is completed. Public hearings to obtain the views of
impacted people will be necessary as soon as the communities have been fully informed of the
mining plans. (See Box 8)
The Autonomous Regional Corporations (CARs) are supposed to be strongly supportive of
environmental concerns. But this role is often forgotten: as of December 2011, the Controlaria
General, accused of fiscal irresponsibility, malversation of resources and inadequate
implementation, is investigating five CARs. In October 2011, GoC’s Supreme Court of Justice
opened an investigation against the President of Congress for presumed influence trafficking in
various CARs.
Because 80 percent of mining royalties are supposed to return to the producing region to be
invested in development projects, transparency is key. Currently, citizens in Colombia don't
know whether royalties are being returned. Neither do they know whether the government has
negotiated a good deal on their behalf. For example, Rudas (2011) calculates that 40 tons of
26
gold exported in the period of his study had zero royalties paid. About 2.2 billon pesos were
claimed to have been paid in mining sector income taxes, whereas the Government of
Colombia’s Regla Fiscal para Colombia (banrep.gov.co) registered that only 762,000 million
pesos actually were paid (Rudas, 2011).
Box 11: Why Was Ingeominas Exempt from National Laws? How did Ingeominas Get Away
with Violation of Laws with Impunity? The Example of La Toma
“Están entregando todo tipo de licencias de minería, de manera anárquica y corrupta...Es lamentable lo
que ha ocurrido en los últimos años. De 2.000 títulos mineros pasamos a 8.000, que representan el 8 por
ciento del territorio nacional. Se han dado licencias hasta en los páramos y en los parques naturales. …..
El Ministerio de Minas es muy débil, Ingeominas es una cueva de Alí Babá.”
Manuel Rodríguez Becerra, Fmr. Minister of Environment, El Tiempo 11 July 2011
In 2010, the Department of the Interior and the Institute of Geology and Minerals awarded a contract,
without consultation with the potentially impacted communities, to Hector Sarria to extract gold around
La Toma Township and ordered 1,300 families to quit the ancestral lands where they had been working
since 1636.
Tensions between the local government and residents led to the latter setting up road block in protest.
As a result, the eviction order was suspended multiple times, and in December 2010, La Toma officially
won its case with Colombia’s Constitutional Court. Hector Sarria’s mining license, as well as up to 30
other illegal mining permits, were suspended permanently.
Perhaps the Wayuu Indigenous Peoples and La Toma community’s best hope is in a new Victims’ Law,
ratified in June 2011. But in the short term, tensions seem set to increase as Colombia works to
implement the new law, which will offer financial compensation to victims or surviving close relatives of
millions of people forced off their land, including many Afro-Colombian and Indigenous Peoples. But
now, AngloGold Ashanti Corporation has found a fast-track to an immediate start to operations, via two
mining concessions, together covering 403 hectares, allegedly owned by Raúl Fernando Ruiz Ordoñez
and Héctor Sarria. Neither of these concession holders are linked with the community, nor have they
carried out any mine exploration or exploitation activities. Rather, in the light of the known interest of
AngloGold Ashanti, these two gentlemen have initiated a legal process of expropriation that will stop the
Afro-Colombian communities from continuing the work they have carried out for generations in this
district. Two commendable and precedent-setting decisions by the Constitutional Court* means that
other communities can argue that any issuance of concessions/mining titles should be subject to proper
prior consent, as per Suriname’s Saramaka Afro-Descendants (which one decision cites).
Note: * Sentencia T-1045A, T-129, et seq. Sources: anglinews. blogspot.com/2011/11/la-toma.html,
and: semana.com/ nacion/olla-podrida-ingeominas/157933-3.aspx.
Ingeominas violated the Mining Code without punishment. This is not a political issue; it is a
criminal issue that needs to be investigated and halted. Rudas summarizes: “Annual surface
license fees are payable to the Colombian government … no one knows whether it is paid, who
receives it and how it is spent. It could constitute one-third of the environmental budget. It is
27
likely to be 10 times more than what the mining authorities claim to be receiving at the
moment. Our mining minister talks about a low budget, but from my own studies I know there
is a lot of money coming from licensing. Mining royalties paid in 2009 were 1.93 Bn Pesos, but
with exemptions of 1.75 Bn." In other words, most mining royalties were returned to the
mining corporations.
Box 12. The ESA is the Prime Tool for Inter-Ministerial Coordination
All draft permits for major infrastructure (e.g., highways, hydrodams, mining concessions, both
exploration and exploitation, oil palm plantations, and industrial cattle ranches), should be circulated
through the environmental agencies and to all stakeholders for prior approval as a matter of routine
whether requested or not. The draft permit should be accompanied by a reliable ESA. The draft
permit, maps, and summaries should be circulated to all stakeholders well in advance and
disseminated through newspapers, radio broadcasts, and pamphlets. Permission to cross farmers and
smallholders’ lands for exploration is essential.
This all would be made more efficient if the
environmental agencies are involved from the outset in the design and accompaniment of the ESA
process, as well as the Autonomous Regional Corporations (CARs), and the Asociacion Colombiana de
Autoridades Ambientales.
8.
Conclusion: Environmental and Social Governance
Conclusions for the short term are:

Mining corporations should pre-qualify before they seek mining licenses. This would
encourage better corporations and deter those with weak records.

Environmental and social and impact assessment (ESIA), the main tool to distinguish
high- impact projects from low-impact projects, needs to be employed more frequently
and made more reliable.

Now that Ingeominas has been removed from the mining permitting process, its
successor, ANCLA, must promote Inter-Agency coordination, public participation, FPIC,
transparency, insist on prequalification, improve ESIA, foster compliance with the
prevention and mitigation plans, and make meaningful performance bonds and
insurance the standard norm. There still is great scope for ensuring all mining taxes and
royalties are kept at meaningful levels and that miners fully report them and pay them
with transparency.
Environmental governance transcends the limits of both the former Ingeominas, now ANCLA,
and the Ministry of Environment. Impacted people must be routinely involved, FPIC should
28
become the norm, and supervision to foster compliance must be tightened. Instituting best
practices reduces violence, promotes democracy, reduces bureaucracy, and reduces costs.
Ultimately GoC’s approach to mining should be part of a broader approach to environmental
governance that would cut across all domains of the state. The justification for making
environmental governance an issue of statewide strategic importance is that environmental
vulnerability is a profound source of human and political insecurity in Colombia, as well as an
issue of central importance to human welfare (arguably more so here than in many countries).
The creation of a fully-fledged Ministry of Environment and Sustainable Development, and of
ANCLA, and the stripping of all permitting processes from Ingeominas are encouraging steps to
reduce social and environmental impacts of mining.
While there should indeed be a focal point for accountability and responsibility for regulation of
mining, the government as a whole needs to be involved as well. Environmental governance
transcends the limits of the national government, and involves state, private, and civil society
organizations. Local and national authorities (e.g., Ingeominas, CARs, ANCLA, Ministerio de
Ambiente, Ministerio de Justicia) must comply with the Constitutional Court Order 005 of 2009
and the Sentence 1405-A that clearly define the ways and mechanisms to ensure remedies to
the illegal mining and protect communities’ and leaders’ lives and rights. Ultimately a successful
strategy of environmental governance will require that these different agencies share the same
basic principles of an environmental agenda. These principles should hinge on the reduction of
environmental vulnerability and environmentally related social vulnerability.
________
Acknowledgments: I am most grateful to Marianne Moor and Julia Van der Hoeven of Ikv Pax Christi for inviting
me to participate in the Controlaria General’s forum. I am also grateful for the Controlaria General’s excellent
papers on environment and mining in Colombia through the years, especially their December 2011 annual report
to Congress. Robert Moran, Mary Paden, Peace Brigades International, Guillermo Rudas-Lleras, and Viviane
Weitzner of NSI, helped considerably with earlier drafts. The many mistakes are entirely my own.
About the Author: Robert Goodland served as the World Bank Group’s environmental adviser for 23 years, after
which he was the Technical Director of the independent Extractive Industry Review of the World Bank’s oil, gas and
mining portfolio (EIR.org). He was elected chair of the Ecological Society of America (Metropolitan), and President
of the International Association for Impact Assessment. Last year he was awarded IUCN’s Coolidge Medal for
outstanding lifetime achievement in environmental conservation. Recent month have been spent helping the
Government of El Salvador with its possible metal mining moratorium, and acting as the lead judge in the tribunal
concerning Guatemala’s gold mine.
29
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