PUBLIC PARTICIPATION IN NATURAL RESOURCES MANAGEMENT IN LATIN AMERICA: TO INCLUDE OR NOT TO INCLUDE

• Jurisdiction: Derecho Internacional

MINING LAW & INVESTMENT IN LATIN AMERICA
(April 2003)
CHAPTER 10A
PUBLIC PARTICIPATION IN NATURAL RESOURCES MANAGEMENT IN LATIN AMERICA: TO INCLUDE OR NOT TO INCLUDE
Lila K. Barrera-Hernández ^*
Faculty of Law — University of Calgary
Calgary, Alberta, Canada

1. Introduction

The landscape of natural resources management has changed significantly over the last years. Projects, or at least successful projects, can no longer be undertaken on the sole basis of a government's authorization. Involving the public in development decision-making is now becoming part of the business as usual scenario, especially regarding natural resources development. This is particularly true in Latin America (LA). There, as in the rest of the world, public activism and participation are driven by a growing body of international and domestic law, the revolution in communications and an increasing awareness of the significance and impacts of natural resources' development.

Ensuring meaningful public involvement in development decision-making may prove of particular importance to sustainability in LA where a pressing need for growth and poverty reduction combined with the flow of new investment capital, increase the risk of proliferation of unsustainable development decisions. In addition, direct stakeholder involvement can also help fill in the gaps created by the countries' generally weak environmental control and enforcement capabilities. Although developing at an increasingly fast pace, the law and policy of public participation in resource-management activities in LA is riddled with uncertainties and conflict, highlighting the tension intrinsic to sustainability.¹ However, even in LA, the question may no longer be whether to include or not to include public participants in resource management decisions, but when and how to include them.

2. Drivers of International Law

a. Instruments of International Law

Because of the uncertainties mentioned above, relevant international law becomes a significant source of guidance for planning an effective public participation strategy. Local regulatory efforts need to comply and be consistent with the countries' international commitments. In addition, those efforts are influenced by the policies and practices of the international financing community, mainly the World Bank and the Inter-American Development Bank. Although beyond the scope of the present review, policies and practices of multinational corporations with Research Associate, Faculty of Law, University of Calgary, Canada; Lbarrera@erols.com

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experience in jurisdictions where the issues have played a prominent role may also influence the regulatory process. According to the above, it is important to acknowledge research and assess the impact of international law and policy in relation to the local context. The following deals only with a few of the most relevant instruments of international law for public participation in Latin America.

Among the most prominent instruments of soft law are the Declaration of Rio and Agenda 21 of the 1992 United Nations Conference on the Environment and Development and, at the regional level, the 1996 Declaration of Santa Cruzand thePlan of Action issued by the Summit of the Americas for Sustainable Development in Bolivia, Dec. 1996.²

The Summit's Declarationpays particular attention to public participation, including indigenous peoples' participation in stating, inter alia, that:

We will support and encourage, as a basic requisite for sustainable development, broad participation by civil society in the decision-making process, including policies and programs and their design, implementation, and evaluation. To this end, we will promote the enhancement of institutional mechanisms for public participation.

... [and]

We will promote increased opportunities for the expression of ideas and the exchange of information and traditional knowledge on sustainable development between groups, organizations, businesses, and individuals, including indigenous people, as well as for their effective participation in the formulation, adoption, and execution of decisions that affect their lives. ³

Although soft law instruments such as the ones referred to above do not require strict compliance and are not enforceable through international tribunals, there is a strong expectation that commitments made therein will be kept. In addition, those instruments provide common grounds for future collaboration and understanding among countries. Thus, for example, the Summit's Plan of Action entrusts the Organization of American States (OAS) with the implementation of an Inter-American Strategy for the Promotion of Public Participation in Decision Making for Sustainable Development. ⁴ The Strategy, currently underway, is a first step towards full integration

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of civil society, including indigenous peoples, into sustainable development decision-making in the Americas.⁵

A much more developed set of international hard law mechanisms is in place in relation to indigenous peoples issues under the umbrella of the International Labour Organization (ILO) a specialized agency of the United Nations System. ILO's Convention 169 of 1989 (ILO 169)⁶ incorporates a recognition of indigenous and tribal peoples as a clearly distinct stakeholder group whose input and concerns must be taken into account in sustainable development decisions. Under ILO 169 governments undertake to take "coordinated and systematic action" (art 2) to protect indigenous peoples' rights and integrity safeguarding "persons, institutions, property, labour, cultures and environment" (art 4). In so doing, they must seek their co-operation and input (art 7). In turn,

[indigenous peoples have] the right to decide their own priorities for the process of development as it affects their lives, (...) and the lands they occupy or otherwise use, and to exercise control to the extent possible, over their own economic, social and cultural development.... [T]hey shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. ⁷ (emphasis added)

The Convention goes beyond a mere reaffirmation of basic human rights by attempting to bridge the gap between human and economic rights that is currently evidenced in the negative impact of development among these peoples.⁸ Thus, articles 14 and 15 contain a recognition of these groups' rights to land and natural resources (in ownership or possession) including the right to participate in the use, management and conservation of those resources. Art 15.2 specifically provides that:

In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall re

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ceive fair compensation for any damages which they may sustain as a result of such activities,(emphasis added)

ILO 169 also provides for protection against displacement as well as relocation rights where applicable (art 16).

Ratification of an ILO Convention involves a commitment by the member State to render its provisions effective within its national legal system, and to provide information to relevant ILO supervisory bodies. Though ILO 169 may lack worldwide significance as a source of international law due to low number of ratifications, the Convention is of great relevance in LA where it has already been ratified by 10 countries.⁹ Convention 169 issues are bound to generate increasing legal activity as the region develops and rights to land and resources are contested in connection with indigenous peoples' basic rights of survival and cultural preservation. It is therefore important to keep in mind that any disputes that relate to the implementation of ratified ILO Conventions may eventually find their way into the International Court of Justice.

Also of significance due to its specific focus on participation as a fundamental right linked to environmental preservation is the 1998 UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention). ¹⁰ Despite its European roots, Aarhus is bound to have widespread impact and is already in force outside Europe.

Aarhus' objective is to contribute to the preservation of environmental rights by guaranteeing the right to public participation, access to information and to justice as necessary preconditions to "the right of every person of present and future generations to live in an environment adequate to his or her health and well being."¹¹ Among other things, it requires effective public participation in permitting processes dealing with activities with potential significant environmental impacts, including mining activities. As mentioned, not only may Aarhus be ratified outside Europe, but it may also significantly influence how companies do business around the world.

Finally, it should be noted that the issues put forward in the instruments mentioned above and others like them, are backed by yet another layer of international law dealing with basic human rights such as the right to health -including an environment conducive to appropriate quality of living-, economic, social and cultural rights, rights against discrimination, etc. An example in connection with indigenous peoples and participation may be found in the 1993 Vienna Declaration and Programme of Action of the World...