THE ROLE OF PUBLIC PARTICIPATION IN NATURAL RESOURCES DECISIONS

• Jurisdiction: Derecho Internacional

MINING LAW & INVESTMENT IN LATIN AMERICA
(April 2003)
CHAPTER 10B
THE ROLE OF PUBLIC PARTICIPATION IN NATURAL RESOURCES DECISIONS
Juan Pedro Portaro
Estudio Aurelio García Sayán
Lima, Peru

A description of Peruvian legislation, including constitutional amendments, regarding both public and community participation in mining development.

I. BACKGROUND

Public participation in natural resources decisions was almost unthinkable until the Environmental Protection and Natural Resources Code (the "Code")¹ was enacted in 1990. The Code became the turning point of the Peruvian environmental regulations, as it allowed to put away a disperse, and sometimes confusing and contradictory legal framework made of rules of different nature and hierarchy, and to put in place a new legal framework, which will be described below.

Until the Code was enacted, under the tag of "environmental legislation" activities as different as mining, animal slaughter for human consumption or vegetables trading were regulated.

Probably with good intentions but ignoring the possibilities of enforcing a legal regulation, annoying noises were prohibited in factories, workshops, industries and stores located within the city limits;² fishmeal factories that failed to control the stench were to be closed down;³ industries were prohibited from expelling gases in such volume that could be smelted;⁴ and, food wrapping in used paper was prohibited.⁵

Paradoxically, too many regulations, enacted by too many authorities, left the environment unprotected. Such chaos caused non compliance of the regulations that were supposed to protect the environment, which suffered a great impact.

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In the described situation, public participation in natural resources decisions was not even considered by authorities. The Code is a serious attempt to establish a new legal framework that would allow to develop mining and other activities in an environmentally friendly manner, and with an important public participation. The Regulations of Community Participation in the Evaluation Proceedings of the Environmental Impact Assessments in the Energy and Mines Sector, in force since December 2002, strengthened public participation in mining and energy projects.

Even though several of the regulations referred to below also apply to energy and hydrocarbon developments, this paper focuses on mining developments.

II. THE PERUVIAN LEGAL FRAMEWORK

1. Convention 169 of the international Labor Organization concerning Indigenous and Tribal Peoples in Independent Countries

This Convention was confirmed by the Peruvian Congress ⁶ and therefore is part of the Peruvian legislation.⁷ Given that another speaker will examine this Convention in detail, this paper will only refer to certain provisions of this Convention that are relevant in connection with Peruvian law.

The Convention considers that consultation with the communities that in any way could be affected by the development of a mining project assures public participation.⁸ It also considers that the studies to be carried out shall assess the project's impact on the peoples concerned, as well as the project's environmental impact, and that the results of such studies shall be taken into consideration when determining the project's development.⁹

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The Convention makes a direct link between public participation and mining projects, by establishing that when the State retains ownership of minerals, a procedure must be established for consulting the local communities and assessing the project's impact before the projects commences.¹⁰

2. The Constitution of 1993

Items 5) and 17) of Article 2° of the Peruvian Constitution of 1993 guarantee the right of all individuals to access public information and to participate, individually or collectively, in the political, economic, social and cultural life of the nation.

3. The Environmental Protection and Natural Resources Code

Following the framework established by the Code, with the modifications imposed by the Law for the Growth of Private Investment,¹¹ since 1990 several laws directed to attract investments on important areas as mining hydrocarbons, energy, fishing, agriculture and industry have been enacted. The ministry that has authority over the activities carried out by an specific investor is responsible of the environmental issues that arise from the development of such activities (i.e., the Ministry of Energy and Mines regarding mining, hydrocarbons and energy projects).¹²

Following the provisions of the General Mining Law,¹³ the Hydrocarbons Law,¹⁴ the Law of Electric Concessions,¹⁵ the General Fishing Law,¹⁶ etc., sectors as Energy and Mines,¹⁷ Fishing¹⁸ , Agriculture¹⁹ and Industry,²⁰ have

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nacted regulations that govern environmental protection and the procedures to comply with the new environmental requirements.

In general terms, these new regulations require that an Environmental Impact Assessment (EIA for its abbreviation in Spanish) be prepared before developing new activities, and that an Environmental Adjustment and Management Program (PAMA for its abbreviation in Spanish) be prepared in order to allow ongoing operations to comply with the maximum allowed limits. Depending on the specific characteristics of the project to be executed, additional documents may be required, such as the Preliminary Environmental Impact Assessment (EIAP for its abbreviation in Spanish)²¹ or the Environmental Assessment (EA for its abbreviation in Spanish).²²

In consideration of the interest of the local communities that would be related to a specific project, an important space for public participation has been established in the administrative procedure conducive to review and approve the abovementioned studies.

It is important to point out that mining, hydrocarbons and energy are the most advanced sectors regarding environmental legislation and, consequently, regarding public participation regulations.

4. Public participation in the Environmental Protection and Natural Resources Code

As previously mentioned, the Code is the legal body that, for the first time, enacted the "Community Participation"²³ and defined it as the right of the community to be informed and to participate in the decisions regarding environment protection. Article VI of the Code's Preliminary Title establishes:

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"Every individual has the right to participate in the establishment of the national, regional and local decisions regarding natural decisions and the environment. Further, every individual has the right to be informed of all decisions and activities that may affect public health, natural resources or the environment.

Everyone is obliged to submit the information required by authorities regarding control of the environment".?

Further, Article 11° of the Code establishes that the Environmental Impact Assessments are public documents available to all interested persons; and Article 34° of the Code establishes that the community participates in defining and executing the environmental policy.

5. Public participation in the Energy and Mines Sector

Following the framework established by the Code, the Energy and Mines Sector enacted the necessary provisions to regulate the Public Hearings thru which takes place the public participation when the Environmental Impact Assessments of mining, hydrocarbon and energy projects are subject to approval procedures.

5.1. Regulations of Community Participation thru Public Hearings in the Evaluation Proceedings of the Environmental Impact Assessments

The first provision passed with this purpose is the Regulation of Community Participation thru Public Hearings in the Evaluation Proceedings of the Environmental Impact Assessments, enacted in 1996.²⁴

When this regulation came in force, the Environmental Impact Assessments of mining projects required the previous approval of the Bureau of Environmental Affairs of the Ministry of Energy and Mines in order to be subsequently approved by the Mining Bureau.

Public Hearings were regarded as the most effective mechanism to assure public participation in the review of Environmental Impact Assessments. It was expected that such public participation would bring a positive impact on the control of the environmental aspects of all mining activities.

This regulation established, roughly, the following procedure:

— Once the Environmental Impact Assessment was filed, the Mining Bureau would determine the place, date and time for the Public Hearings to take place. The persons that prepared the Environmental Impact Assessments were required to support their work during such Public Hearings.

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— 30 copies of the Executive Summary of the Environmental Impact Assessment should be available for distribution among the attendance.

— The summons of the Public Hearings should be published in the official gazette and a major local newspaper, at least 12 days before the designated date.

— During the 8 days following publication of the summons, any person may register before the Mining Bureau in order to participate in the Public Hearings and obtain a copy of the executive summary.

— Two representatives of the Mining Bureau and one representative of the Bureau of Environmental Affairs of the Ministry of Energy and Mines were required to attend the Public Hearings.

— Once the Environmental Impact Assessment had been explained in the Public Hearing, the participants could submit their questions in writing, and the persons that supported the Environmental Impact Assessment would answer them. Two rounds of questions were allowed.

— After the questions, the participants were allowed to present all relevant documents. Such documents would be annexed to the file and taken into consideration for evaluation of the Environmental Impact Assessment.

— A written record of all the proceedings that took place during the Public Hearings would be...