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SarWatch Writer
Call for Consultants to undertake assessment studies on development financing by business to promote human rights and community participation with focus on the mining sector.

Country assessment study on development financing by business to promote human rights and community participation using selected case studies of mining companies in South Africa, Mozambique, DRC, Zimbabwe and Zambia

Background

The growing demand for energy and natural resources has led many resource-rich Southern African countries to avail more land for the extraction of oil, gas and minerals to foreign extractive companies. The extractive industry is a key economic sector in the growth and development of countries in the Southern Africa Development Community (SADC) regional bloc.

Historically, countries such as South Africa, Democratic Republic of Congo (DRC), Zambia and Zimbabwe have contributed immensely to the global supply of high-value minerals and metals, including gold, diamonds, copper, cobalt, chrome, platinum group of metals (PGM), and nickel. The discovery of gas in Mozambique and uranium in Malawi has also opened these countries to extraction projects in pursuit of socio-economic benefits. Mining, by its very nature, is destructive to the environment and often presents a myriad of changes to the socio-cultural and environmental conditions of adjacent communities.

There is now a growing recognition that extractive projects are only secured and beneficial when they establish a strong win-win relationship with those affected by the project through the identification and management of risks and opportunities. However, despite increased production of mineral resources in the SADC countries, states lack the institutional capacity to monitor extractive projects and ensure that they do not adversely affect the environment and the lives of people in local communities. All countries in SADC have in place national laws, regulations and policies that require mining companies to ensure community participation in decision-making processes. Increasingly, both governments and companies are recognising the importance of free, prior and informed consent, and the ‘polluter pays’ principle.

The laws and policies relating to community participation in mining processes have been modelled around social and environmental management processes. Examples of such processes include in the Environmental Impact Assessment (EIA), Social Impact Assessment (SIA) and Social and Labour Plans (SLPs). However, there exists a significant gap between policy and implementation.

Apart from national laws, there are also international and regional legal instruments that determine how natural resources should be exploited, and how benefits should be shared. At the international level, the UN through its Resolution 1803, recognises the existence of states sovereignty over their resources. While it affords states wide discretion to dispose of their resources as they see fit, it also prescribes the context within which states must act. It requires states to exercise this sovereignty in the interests of the people. Resolution 1803 states that “The rights of the people and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and well-being of the people of the state concerned”. This is a permanent sovereignty doctrine which can also be found in the Charter of Economic Rights and Duties of States, passed by the UN General Assembly in 1974 as a centre-piece of what came to be called the “New International Order”.

Another international principle that supports respect for human rights in the extraction of resources is the International Covenant on Economic, Social, and Cultural Rights (ECOSOC), which stipulates that the “the misuse of a nation’s resources is a violation of human rights”, and obliges states to respect, protect, and fulfil the rights it sets forth. It is important for citizens to confront their governments, including litigating against them, when this right is not respected and protected.

At the continental level, the African Charter on Human and Peoples’ Rights adopted in 1986 (to which all SADC countries are signatories) stipulates in Article 21 that “All people shall dispose freely of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. In case of spoliation the dispossessed people shall have the right to lawful recovery of its property as well as to an adequate compensation…” The African Charter stipulates further (in the same Article 21) that “…states to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practiced by international monopolies so as to enable their people to fully benefit from the advantages derived from their national resources…” There is also the African Mining Vision, which emphasis the need to place mining in the structural transformation of national economies and societies; the primacy given to national democratic sovereignty and control over the exploitation of country’s resources, and determination of the nature of their use; the recognition of the rights of constituencies and their participation in the formulation of mining and broader development policy; and the commitment to building national institutions for the effective realisation of these principles.

Rationale

Given the numerous high-profile cases in which business has been implicated in serious human rights violations across the world, significant changes have taken place in the human rights discourse. There has been recognition of the clear link between business and human rights. Various global initiatives from UN bodies, financial institutions and industry have placed human rights higher on the business agenda. These various initiatives have attempted to address existing challenges in business development projects, providing standards and guidance to foster better industry practices.

At the heart of the relationship between business and human rights is the principle of community consultation and participation in all processes throughout the mining project cycle. Financial institutions such as the World Bank, through the International Financial Corporation (IFC), now require funded projects to ensure meaningful and broad community participation to meet environmental and social standards to avoid or mitigate risks. Whilst governments and some mining companies have made significant strides in mainstreaming community participation in business operations, community engagement in the SADC region’s mining sector still falls short of this important principle in the discourse of business and human rights. This is because the concept of business and human rights in the mining sector has not yet been fully understood and implemented in the region by the key stakeholders (governments, local communities and mining companies).

Various mining companies have adopted initiatives to address the antagonistic relations affecting the sector by carrying out community development programmes under their corporate social responsibility (CSR) initiatives. These CSR initiatives stem from a global consensus that business is not an isolated entity but is part of the broader social, economic and political sphere. CSR has mainly been modelled as a voluntary initiative, based on internal policies undertaken by the mining companies within the wider social economic contribution to the local community. Some mining companies in SADC are investing large amounts of money in social programmes aimed at addressing the challenges faced in affected communities (including high levels of poverty and lack of access to social services such as health-care and education, climate change and natural disasters). The few cases of companies that have positively transformed the lives the communities in which they are operating have been anchored on trust and participatory approaches.

It is now an accepted principle that to earn a social license to operate, extractive companies are obliged to undertake effective community engagement and participation prior to the commencement of operations. This participatory approach is centred on involving local host communities in the key decision-making processes at all stages of the mining cycle, from inception to mine closure. In addition, emerging models on business and human rights now include development financing for community-based groups or civil society working on monitoring and advancing sustainable mining operations. These interest groups often have expertise vital to good and effective public consultation, based on being sources of local knowledge, sounding boards for project design and mitigation, vehicles for consulting with sensitive groups, and partners in planning and implementing community development programs.

The working together by business and financial institutions with human rights groups who have ongoing relationships of trust with affected local communities is a model aimed to attain sustainable development in project sites. Against this background SARW is implementing a project on Development Finance for Community Environment and Justice Defenders in Southern Africa anchored on promoting business and human rights in SADC’s mining sector through the identification of best practices on effective and sustained community participation. The integration of business and human rights in mining projects is intended to assist mining companies to learn and share what has been learnt regarding effective and meaningful community participation in all the various processes of the mining cycle.

Overall objective of the assignment
The overall objective of the assignment is for the consultants to undertake country assessment studies on development financing by business to promote human rights and community participation, using selected case studies of mining companies in South Africa, Mozambique, DRC, Zimbabwe and Zambia. Some of the aspects that the study should include are;

  • company policies or approaches involving implementation on business and human rights;
  • integration of community participation and financing in the various processes of the mining cycle;
  • existing structures or initiatives on community-company engagement and effectiveness;
  • existing development financing by companies and financial institutions for the work of human rights groups working on community rights, environment and justice defenders;
  • comparative case studies of two mining companies in the country;
  • identification and analysis of community grievance mechanisms and their funding models.

Expected Deliverables

  • A country assessment study on the development financing by business and financial institutions on human rights and community participation of mining companies in South Africa, Mozambique, DRC, Zimbabwe and Zambia. The study should also document emerging models of development financing for collaboratives work on human rights and the environment.

Assignment Timeline

The consultancy will be done over two-months from November to December 2020 (30 days).

Application Requirements

Interested consultants who are academics with experience on extractive industries and community participation should submit the following documents not later than 20 October 2020 to [email protected]:

  • Expression of Interest, together with the proposed mining company case studies and budget.
  • CV of the lead consultant with 3 references of previous similar mandates
  • Samples of published work on extractive industries or business and human rights.

About Southern Africa Resources Watch

Southern Africa Resources Watch is a Pan African civil society organization that promotes and advocates for a transparent, accountable, equitable and people centred extractive industries (minerals, oil, gas and logging). Our vision is: Improved Africa’s human conditions through good governance of the continent’s natural resources.

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