Communities and Governance of Natural Resources: Natural Justice Works in Turkana

Turkana County, Kenya has been considered amongst the poorest in the country. However, recent oil and water discoveries as well as planned infrastructural developments have brought hope to the citizens of a better life but have also raised a number of critical social, economic and environmental concerns. These were discussed during a Friends of Lake Turkana hosted conference titled 'Towards a Governance Agenda: Harnessing Natural Resources, Communities and Development, which was held in Lodwar, Turkana from the 21-24th of October 2014.

The conference sought to strengthen multi stakeholder participation and engagement in order to ensure local participation in natural resource and infrastructural development. Participants at the meeting included representatives of county and national governments, oil companies, civil society and community representatives. Further information on the conference can be found on the Friends of Lake Turkana website.

Natural Justice is partnering with Friends of Lake Turkana to ensure that legislation and policy positively represent the needs of the citizens of Turkana, in particular its pastoralist communities, so that they are involved in decisions related to their lands, resource and knowledge.

Kenya’s New Mining Bill, 2014

Natural Justice’s work in Kenya has focused around the LAPSSET project. One major factor around our work has been the myriad of bills in Parliament waiting passing that will regulate community land, mining, oil and gas, energy and infrastructure.

One of the more significant and impactful pieces of legislation, the Kenya Mining Bill 2014 was passed on its third reading last week.  The bill repeals the former archaic remnant of a long-forgotten epoch, the Mining Act from 1940 and still in force, which fails to adequately meet the current demands of the emerging sector.  The primary objective of the bill is to consolidate all of the current laws related to mining.  It also seeks to implement a number of articles within Kenya’s Constitution pertaining to land management, respect for the environment and agreements for natural resources.

As the bill stands, there are certain concerns that still need to be addressed.   A major concern is the wide discretionary powers held by the Cabinet Secretary, which belie transparency and good governance, though the latest draft has attempted to create a body known as the Mineral Rights Board that takes some powers, though minimal, away from the Cabinet Secretary.  The definition of community in the bill is also disconcerting.  In the Interpretation section of the bill, a community is defined as (a) a group of people living around exploration and mining operations area; or (b) a group of people who may be displaced from land intended for exploration and mining operations.  The definition, worryingly, does not clarify what ‘around’ or ‘group’ means nor does it include other communities who may still be affected by mining operations.

Another issue is the failure to include provisions adequately dealing with consultation with communities in relation to mining activities.  There should be consultation with communities in all aspects of the planning process according to international law and best practices, however the bill is silent on this.  The bill has provided for royalties to be shared among the National Government  – 70% to the County government – 20% and to the community where mining operations occur – 10%.  This is an improvement from the previous allocation of 5% to communities. Finally, the Mining Bill outlines the acquisition of community land without consent if the Cabinet Secretary considers it to be contrary to national interest.  This is a vague and arbitrary term.  The bill fails to provide a solution for communities who refuse to allow their land to be used for mining.  Natural Justice shall continue to follow up on the developments and discussions around this law with community members and partners as it awaits presidential assent.

Legal and Dialogue Training in George, South Africa

From 20 to 22 October 2014, Natural Justice, with the support of Southern Cape Land Committee, hosted 3 days of legal and negotiation training in George, South Africa, involving community members from across the Karoo, likely to be impacted by hydraulic fracturing (or "fracking"). The meeting was supported by Ford Foundation Southern Africa.

With the support of Centre for Environmental Rights, participants from the community in Nelspoort together with representatives from the Anti-Fracking Task Team and Khoi-San representatives, engaged in one day training on fracking generally, as well as relevant environment and participation laws in South Africa. In addition, the role of the African Commission on Human and Peoples' Rights was discussed, as was the principles of free, prior and informed consent and consultation in international law.

Subsequent days were spent discussing principles and differences between different methods of engaging with external actors, in addition to the role of legislation in supporting engagement between community and the government around fracking issues.

The training session complemented ongoing discussions with community representatives about different methods of mobilisation and the use of the law and participatory methodologies to support this.

More than 93% of Extractives Developments Involve Inhabited Land - New Report

In a new analysis of almost 73,000 concessions in eight tropical forested countries, more than 93% of mining, logging, agriculture, oil and gas developments were found to involve land inhabited by Indigenous Peoples and local communities. The report, Communities as Counterparties: Preliminary Review of Concessions and Conflict in Emerging and Frontier Markets, prepared by The Munden Project, highlights the alarming amount of land that governments have handed over to the private sector for mining, logging, agriculture, oil and gas, including 40% of all land in Peru and 30% in Indonesia. The researchers found that these concessions often generate conflict with local communities. Examining 100 such instances, the report identifies major patterns in how and why these conflicts occurred, and puts forth recommendations for avoiding them.

Legal and Conflict Transformation/Negotiation Training in Manicaland, Zimbabwe

From September 29 to October 3, Stephanie Booker of Natural Justice hosted 5 days of legal and negotiation training in Manicaland, Zimbabwe, with Chiadzwa Community Development Trust and members of communities from Mutare and Arda Transau. The meeting was supported by Ford Foundation Southern Africa and the Heinrich Boll Foundation.

Supported by the legal expertise of the Zimbabwe Lawyers for Human Rights and the Zimbabwe Environmental Law Association, participants were led in two-day training, discussions and information sharing on relevant laws and policies in Zimbabwe with respect to the environment and human rights and regional and international law.

From 1 - 3 October, Zimbabwean organisation Centre for Conflict Management and Transformation led an interactive training with participants on inter-community conflict and general principles of engaging with external actors. The sessions gave insight on engaging an issue from different perspectives.

The training session complemented the existing community protocol processes being engaged in the community at present. In addition, a small number of participants from mining impacted communities across Zimbabwe took the opportunity to join the much-sought after training, to learn from about relevant laws and policies and to share experiences with community members across Zimbabwe.

Legal Remedies for Resources Equity – BCPs as a community-driven and consensus building process

On 15 September Natural Justice participated in a day-long workshop on Legal Remedies for Resources Equity co-organized by the Heinrich Böll Stiftung, UfU and eLaw in Berlin, Germany. The workshop brought together more than 200 lawyers from 38 countries involved in public interest litigation and support around equitable and sustainable natural resources management.

The second session of the day focused on “Public participation: Challenges and opportunities for local populations” and involved short presentations from practitioners on different national campaigns and cases on enforcing the right to information, public participation and free, prior and informed consent (FPIC).

Associate Marie Wilke reported on Natural Justice’s work with communities who face adverse effects caused by the mining industry and large-scale infrastructure projects. Over the past year Natural Justice has worked to support communities from Argentina, India, Kenya and Zimbabwe in mobilising and formulating their interests and strategies using community protocols (CPs). Session participants were particularly interested in CPs as a means of internal community empowerment. Reporting about numerous instances where individuals had sold out their communities’ resources to government and industry stakeholders against the will of the larger communities, participants felt that the bottom-up process of CPs can be critical in avoiding such issues.

On the basis of a number of litigation cases in Southern countries and experiences with EU public participation laws participants also engaged in a discussion on the need for national, regional or international registries for CPs to be able to more easily use them in formal cases. At the same time there was recognition that overregulation can easily lead to a narrowing of spaces for community voices. After a presentation on the Ecuadorian Yasuni National Park experience workshop participants assessed how a CP could have avoided some of the problems that characterize the initiative.

Participants found that one of the main challenges associated with BCPs in the context of extractive industries are the long timeframes needed for developing a BCP and the unpredictable outcome. For that reason the practitioners suggested that BCPs might be most useful in the early stages of foreign investment, i.e. before or the latest during the environmental testing and exploration stages, as this would ensure that communities are not under external pressure to conclude the process, while investors will be under increased pressure to consider BCPs where they already exist.

Other sessions looked at strategies to keep resources in the ground, due diligence of mining companies, transparency in the resources sector and the financialization of nature.

Natural Justice Engagement in Mutare, Zimbabwe

Natural Justice worked with members of the Marange and Arda Transsau communities from 7-8 July in Manicaland in Zimbabwe, to support the development of the community's biocultural community protocol. All were involved in peer-to-peer learning activities designed to support the collection of materials for the community's biocultural community protocol. Activities included institution and resource mapping, mapping of community and other development activities within the communities, now and historically, development of historical timelines and role play activities.

The two day workshop was an incredibly rich opportunity to engage in endogenous development and participatory action research methodologies by Natural Justice and community members alike.

New Report Published on the Impacts of Mining in Uganda

The National Association of Professional Environmentalists (NAPE), Uganda and The Gaia Foundation (UK), have published  a new report entitled "Mining and its Impacts on Water, Food Sovereignty, and Sacred Natural Sites and Territories".

Focusing on Uganda’s Bunyoro region,  the report reveals how mining is significantly threatening ecosystems and communities.  It advocates for the recognition and protection of watersheds, food sovereignty areas, and Sacred Natural Sites and Territories as No Go Areas for mining and extractive activities.

Mining and extractive activities are growing rapidly in Uganda and across Africa. The Ministry of Energy and Mineral Development in Uganda estimates there are 3.5 billion barrels of oil and gas deposits in Uganda’s Albertine region alone.  The impacts of mining are of grave concern to communities and civil society organisations across Uganda and beyond.

The report warns that oil extraction, which is projected to begin in Uganda by 2017, would have destructive, widespread and long-term impacts on the Bunyoro region, which is celebrated for its rich biodiversity and cultural heritage.  The region’s abundance of water, food growing areas and Sacred Natural Sites and Territories, upon which surrounding ecosystems and the lives and livelihoods of communities depend, are at great risk. Women are likely to be disproportionately affected by mining given their dependence on these ecosystems and the vital role they play in their protection. As ecosystems are interconnected, the impacts of mining would threaten not only Uganda but also the Democratic Republic of Congo, Rwanda and Sudan- which share a common watershed - with untold political implications.

The report emphasises the important role of communities, civil society and government in preventing and reducing the impacts of mining on water, food sovereignty and Sacred Natural Sites and Territories.  It cites relevant laws and policies, which could be used to assert a right and responsibility to say ‘No’ to mining. It also calls for recognition of, and compliance with, unwritten law – the laws of the Earth (Earth Law) which are reflected in communities’ customary governance systems - as central in the protection of Nature from the threat of mining and extractive activities. 

The report is published with support from the African Biodiversity Network, and Advocates for International Development.

Community Protocols and Fracking - NJ Holds Another Meeting with Nelspoort Community Members

Following on from an initial meeting with community members in Nelspoort in March, Stephanie Booker and Marisa Choy of Natural Justice held a further meeting with a range of community members from Nelspoort, Western Cape, on the potential impacts (positive and negative) of fracking in the area.

Supported by Southern Cape Land Committee, the meeting was an opportunity to share, discuss and interrogate information currently being circulated, as well as ideas within the community of the benefits and disadvantages of fracking activities in the town. It was also an opportunity for communities to discuss the information that they need to better understand how fracking can impact on their lives and livelihoods.

Call for Applications for Volunteer Internship: Natural Justice, India

Natural Justice: Lawyers for Communities and the Environmentis a non-profit organization registered in South Africa, with offices in India, Malaysia and New York City. We assist communities to engage with legal frameworks to secure environmental and social justice. Our mission is to facilitate full and effective participation of Indigenous peoples and local communities in the development and implementation of laws and policies relating to conservation and customary uses of biodiversity and the protection of associated cultural heritage. Natural Justice works at the local, regional, national, and international levels with a range of partners.

Natural Justice (India) is inviting applications for volunteer interns to support our work around extractive industries in Orissa. This project is part of an inter-regional action-research project with case studies in five countries across the world, including India. The project explores the development and use of bio-cultural community protocols as a tool to facilitate conflict transformation by enabling communities to engage constructively with extractive industries and other external actors, to secure their rights and interests.

Duration: We would prefer the internship to begin on 10th June 2014, for a minimum period of 3 weeks, but the position may be open beyond that.

Location: Please note that the intern will be required to work out of Bangalore, India for the entire duration of internship.

The intern will be required to work on analysing legal issues in this context. Specific responsibilities of the intern will include –

• Assisting with review and analysis of various legislations, policies, notifications etc. applicable in the context of mining in Orissa;
• Review and analysis of case laws;
• Analysis of international law relating to the rights of indigenous and local communities over their territories and resources;
• Assisting with analysis of current state of play with regard to extractive industries in India;
• Filing and follow-up of RTI applications on specific questions, as and when required; and
• Assisting with writing relevant reports and articles.

Prerequisites:

• A law degree, or current enrolment in the 3rd-5th year of 5-year LLB programmes or 2nd-3rd year of 3-year LLB programmes;
• A keen interest in advancing the rights of local communities to govern their territories and resources, especially in the context of extractive industries;
• Strong analytical skills, with an ability and interest to do in-depth research into legislations and case laws;
• Fluency in English with good writing skills;
• Willingness to work in a flexible working environment; and
• Previous experience working with communities and/or civil society organizations will be considered beneficial.

Natural Justice is a close-knit and nurturing collective that places a high premium on facilitating the personal and professional growth of its staff and interns. We will offer the chance to work with a dynamic and highly passionate global team of legal practitioners and gain valuable international experience.

If you are interested, please send a CV and letter of interest to arpitha(at)naturaljustice(dot)org(dot)za and stella(at)naturaljustice(dot)org(dot)za. For those who wish to begin in June, kindly send in your applications by 11th May 2014. For later periods, applications will be accepted on a rolling basis.

Thank you in advance for your applications!