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Sectors: Extractives

Mandatory disclosure can make natural resources work for the people

Will African communities ever become the beneficiaries and owners of their mineral resources, asks Tholakele Nene

The question set the tone of the 2018 Alternative Mining Indaba, held in Cape Town in February, under the theme “Making Natural Resources Work for the People: Towards Just Legal, Policy and Institutional Reforms”.

The more I listened to regional stories from activists in our neighbouring countries talking about how decades of mining policy development still leaves Africa’s people sidelined when it comes to benefit sharing and access to information, the more I realised the importance of fighting for mandatory disclosure.

Dr Ayoa Graham, executive director of the Third World Network in Ghana, spoke about how extractive laws in Africa are “defective” when it comes to implementation, monitoring and evaluation. There is an absence of cost-benefit analysis, he said, and no research about what minerals we have, what they are worth and how Africa can benefit from its own resources.

Graham emphasised the importance for communities of understanding how the revenue generated from the mining of minerals is used, and where it is being used.

“In the absence of cost-benefit analysis, communities are left to deal with mining companies for compensation. We should be moving to a regime where the state should take responsibility for the compensation of people and treat them as part-owners of the resources”, he said.

Lack of transparency

In the South African context #MineAlert has documented complaints from mining-affected communities that the implementation, monitoring and evaluation of various mining laws by the Department of Mineral Resources is near absent.

We have interviewed communities in coal-rich Mpumalanga to find out whether Social and Labour Plans (SLP) have facilitated benefit sharing and found there are still community members who had no idea of what an SLP is, let alone where to get a copy that they can use to hold a mine to book on promises made and not delivered during public consultation processes.

The argument is that, if mining companies are not voluntarily sharing crucial documents such as financial reports and SLPs with the general public, they not only take away the public’s right to access information that could assist communities make informed decisions and benefit from profits made from Africa’s minerals, they also reduce the chances of being held to account by limiting transparency. This makes it easier for mining companies to dig up the minerals and take the lion’s share of the profit, leaving the breadcrumbs for communities to wrangle over.

Mandatory disclosure

“In South Africa the current transparency regime regulating the private sector, including the extractives industry, is focused largely on enhancing information disclosure to shareholders or investors, rather than more broadly to all stakeholders which will include the public and local communities,” found a research report on the legislative and regulatory regime, published by the Open Society Foundation-South Africa (OSF-SA).

The research investigated the limitations and prospects of various institutions that oversee the extractives industry, including their powers to enforce compliance. It also analysed 30 laws, including the Promotion of Access to Information Act and the Mineral (PAIA) and Petroleum Resources Development Act (MPRDA), which are often seen as the cornerstone of transparency and justice in the extractives industry.

“There were very limited disclosure rules relating to ownership, operational and financial information,” the report concludes.

The MPRDA, for instance, provides that the holder of a mining right or mining permit must, at the registered office or place of business of such holder, keep proper records of mining activities and proper financial records in connection with these activities. Furthermore, the holder needs to submit records such as progress reports to the regional manager.

Section 30 of the Act says that this information may be shared with any persons as part of exercising the right to information. However, the Act prohibits disclosure where the information has been supplied in confidence.

The difficulty of accessing crucial information on extractives was highlighted by Publish What You Pay South Africa in a case study on Sedibeng Iron Ore. The organisation is working on a mandatory disclosure campaign that would see stronger legislation promoting public disclosure of mining documents such as financial reports.

International best practice

In 2017 Canada implemented an Extractives Sector Transparency Measures Act that requires all Canadian registered and listed extractives companies to disclose payments to governments in Canada and abroad. This has led to hundreds of companies publicly disclosing reports detailing payments to government by Canadian extractives companies.

Is it not time to look at similar legislation in South Africa?

Tholakele Nene is an Associate of Oxpeckers Investigative Environmental Journalism and manager of the #MineAlert app, which allows users to track and share mining applications and licences across South Africa

Fighting for Answers, Indonesia’s Poorest Communities Don’t Know What’s in Their Water

This article is the third in a series on WRI’s latest report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand. This post focuses on Indonesia, where industrial runoff is degrading the water fishermen depend on.

Roshadi Jamaludin has fished from his local pond for only three years, but everyone in his village remembers what it was like before the pulp and paper and textile mills started releasing wastewater into the Ciujung River, which fills it. Roshadi, who prefers his nickname, Adi, commented, “Long before the fishpond got affected by pollution, everything was really smooth. There was no disease on the shrimp, crab and milkfish. Their growth was also good.”

For generations, people in Adi’s village of Tengkurak, in Serang, Java, Indonesia, have relied on the Ciujung River as their daily source of water for bathing and cooking. Village fishermen set up enclosed ponds on the bank of the river to raise and sell shrimp and fish. But in the 1990s, after rapid industrialization in the area, community members noticed a significant decline in water quality and suspected that industrial wastewater was to blame. Since then, pond fishermen have noticed drastic decreases in the quality of their catch and in their income. Shrimp populations have declined, with catches falling from 30-50 kilograms to 15-20 kilograms. Adi agrees, “Daily income is not available if there is wastewater. If wastewater goes to the pond, everything is off.”

After years of trying to engage the mills and the Indonesian government through protests, meetings and even the courts, people in Serang are still fighting to restore the Ciujung and protect their livelihoods. Yet even after a 2013 government audit of the main waste contributor found multiple problems with its practices and violations of water pollution laws, the community is still struggling. They want answers about the pollutants contaminating their river and whether the companies are releasing more pollution than allowed under wastewater discharge permits.

“(We received) no notice from government when wastewater came along, came uninvited,” confirms Adi. “Information is desperately needed. When there is wastewater, come discuss in forum. Just to let me know. All is helpful.”

Transparency Laws Ineffective

Adi is not alone. Many communities throughout Indonesia and Asia are struggling to get the information they need to address the impacts from rising industrial pollution and weak enforcement of pollution control laws. As documented in WRI’s new publication, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia and Thailand, these Asian governments have strong transparency laws that clearly require the disclosure of environmental information. But inadequate implementation and ineffective disclosure mechanisms are preventing poor, often marginalized community members from getting the local, facility-specific public health information they need.

Indonesia is trying, despite limited budgets and resources. It passed a Right to Know law in 2008 so citizens could request information from the government, implemented a public ratings program showing how industries comply with pollution control laws, and mandated the release of government environmental impact assessments, which set forth standards for private companies and monitoring requirements. It’s developing a public, online environmental database. Despite these efforts, information on local water quality is still not reaching communities like Tengkurak.

Impacts on Participation

Governments in Asia and across the world have recognized access to information as an essential prerequisite for participation and accountability. It can help build public trust in government decisions; ensure proper compliance and enforcement of laws; tailor solutions to local socio-cultural and environmental conditions, and increase a sense of ownership over the process and outcomes. Sharing information clearly with communities can inspire citizen activism and help the government as it works to identify and correct environmental problems.

But without meaningful access to information, local communities are handicapped. For Adi and other communities throughout Indonesia, Mongolia and Thailand, this lack of access is hurting their ability to protect their livelihoods and earn a living. Without the power of knowledge, they can’t hold local government and companies accountable for the impacts of contaminated water, or participate in government decisions about pollution control and enforcement that could help clean up the river.

The report cites numerous examples. In a village in Mongolia, herders fear that mining companies are polluting the Tuul River and making their livestock sick. In Thailand, independent researchers have confirmed that wells in the industrial community of Map Ta Phut are contaminated with mercury and arsenic. But without documentation of water contamination or information about the companies causing the pollution, residents don’t have the facts they need to stop them from violating their permits.

Actions to Improve Transparency

Governments, civil society and international donors have many options to improve responsiveness on water issues. They can release local water pollution information in non-technical formats, like radio broadcasts, pictures and signs that citizens can understand without translation or internet access. They can organize local environmental data and publicly provide accurate, up-to-date information about water use, health risks, and types and amounts of pollutants entering waterways, as well as company-specific data. Civil society organizations and international donors can advocate and invest in initiatives that promote better access to water pollution information.

For now, Adi watches his catches dwindle and his pond degrade. For citizens like him throughout Asia, implementing these recommendations will help ensure he gets the local, facility-specific and public health information he wants. It will ensure he has the power to fight for water justice. 

Left in the Dark on Pollution, Mongolia’s Poorest Communities Must Use Contaminated Water

This article is the second in a series on WRI’s latest report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand. This post focuses on Mongolia, where toxic chemicals from gold mining threaten residents and their herds.

Baasan Tsend, a nomadic herder living in the Mongolian gold mining region of Zaamar, suspects that the water he uses for drinking, bathing and raising his livestock is toxic. Over the past two decades, he’s watched dozens of multi-million-dollar corporations and powerful Mongolian companies pillage his ancestral homeland in search of gold. He’s seen these mines contaminate the groundwater and rivers that have sustained his family’s way of life for generations and consoled neighbors whose animals died after drinking the polluted water.

“We cannot live here,” Tsend says, holding his grandson’s hand. “It is now impossible for any human or animal to drink from that water.”

Like Tsend’s village, poor communities across Mongolia—those that still depend on local water sources—have suffered most from the water pollution that has accompanied the country’s gold rush. Lead, arsenic and other toxic chemicals released during gold extraction processes have leached into Mongolia’s groundwater and flowed untreated into rivers. Exposure to these pollutants can cause severe, long-term health effects, from skin and bladder cancers to irreversible immune system and neurological disorders.

Contaminated water also threatens Mongolian herders’ livelihoods. For many families, livestock are their primary, and often only, source of income. When their animals get sick or die from drinking bad water, herders are left with nothing. They have few financial safety nets and limited economic opportunities.

As the scramble for gold in Tsend’s village heats up again, water pollution is also on the rise across Mongolia and throughout Asia. Each year, industrial facilities dump 300-400 million tons of heavy metals, toxic sludge and other pollutants into the world’s waters, and in Asia, 80-90 percent of wastewater flows untreated back into ground and surface water sources. Yet secrecy around the amount and type of chemicals that companies discharge is still the norm, especially in Asia. Worldwide, 80 percent of countries do not provide comprehensive information on the amount of pollution that companies release into the environment.

A new WRI report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand, examines vulnerable communities’ access to water pollution information in these three countries. It finds that, like many Asian nations, Mongolia, Indonesia and Thailand have all established comprehensive laws that mandate proactive disclosure of water pollution information to the public. Mongolia’s laws, for instance, recognize citizens’ right to obtain environmental data from the government, and establish concrete steps officials must take to release this information to local communities. Yet WRI’s report shows that, despite passing these strong “right to know” laws, Mongolia, Indonesia and Thailand are putting many of their poorest communities at risk by not effectively telling them if their water is safe to use.

Resolving this environmental injustice will require these governments, and others across Asia, to address three barriers that obstruct local communities’ access to information:

Gaps in Local Water Quality Information

Across the world, people need to know if their water sources are too contaminated to drink, cook with, fish or give to their livestock. They need to understand what pollutants companies are releasing into their water sources, how these chemicals will impact their health, which companies are contaminating their waterways and what steps governments have taken to prevent further degradation. Access to this information not only allows families to make more informed choices about their water use, but also enables them to monitor industrial facilities’ compliance with environmental regulations and hold law-breaking polluters to account.

But in Mongolia, Indonesia and Thailand, the data that governments disclose concern ecosystem impacts or threats to overall water quality―not the local, facility-specific and health information that communities need. Mongolia, for instance, does not disclose individual facilities’ pollution discharges, issue permits regulating these discharges or provide companies’ compliance records. Our research partners were also unable to locate any information about health risks associated with using contaminated water, or water quality data for local sources.

In Indonesia, community members face comparable challenges accessing facility-specific information. Although their government publicly rates companies’ compliance with Indonesian environmental regulations, including water pollution controls, officials do not disclose the criteria they use to evaluate compliance. Nor do they release any information on the amount or type of pollutants that facilities dump into local waterways.

Inaccessible Water Pollution Information

The information that Indonesian, Mongolian and Thai governments do release is inaccessible to local community members, many of whom live below the poverty line and reside far from government offices. Villagers in Tsend’s hometown of Tumstii, for example, have few computers and limited internet access, making it nearly impossible for them to navigate national websites or access online databases.

Similarly, when community members in Thailand’s Rayong province submitted information requests to get water data that they couldn’t find online, officials told them that they had to search for the documents in Bangkok—a demand that shifted the burden onto poor villagers to cover travel costs and forfeit a day’s earnings.

Technical, Hard-to-Understand Data

Even when people can successfully access water pollution information, the data that governments provide is so technical that community members cannot understand it. Indonesian fishermen in Serang, a village on the Ciujung River, had to rely on civil society organizations to translate the raw data provided into pictures that they could understand. Mongolian herders also needed local nonprofits to explain the technical responses they obtained through information requests. Community members we interviewed in Thailand received official documents in English, a language they couldn’t speak.

Suffering the Consequences

Without access to pollution information, Tsend can’t protect his grandson from drinking contaminated water. He can’t determine whether it’s safer to give his herd groundwater from a well or let them drink from the river. He can’t meaningfully participate in local decision-making, pressure his government to protect his community from exploitation, or hold companies responsible for environmental violations.

Improving transparency of water pollution data will give Tsend’s village and poor communities throughout Asia access to the information their governments are legally obligated to provide and a voice in the water justice movement. It is an essential first step in claiming their right to clean water. 

In Thailand

This article is the first in a series on WRI’s latest report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand. This post focuses on a Thai community’s fight for information on industrial water pollution.

Complaints about pollution in Map Ta Phut, Thailand, a sprawling industrial estate south of Bangkok, are not new. For decades, residents have voiced concerns about the pollution pouring from more than 140 petrochemical plants, oil refineries and coal-fired power stations. Researchers from nearby organizations and international universities have confirmed local communities’ fears, discovering dangerously high levels of mercury and arsenic in their water. Many have ranked Map Ta Phut as Thailand’s number one toxic hot spot.

Exposure to these pollutants can cause serious health effects. A 2003 Thailand National Cancer Institute study found unusually high rates of cervical, blood and other cancers in Rayong Province, where Map Ta Phut is located. Provincial public health officials have also reported increased numbers of birth deformities, disabilities and chromosome abnormalities, while environmental activists have claimed that pollution from the estate caused at least 2,000 cancer-related deaths from 1996 to 2009.

Yet the Thai government has not responded to communities’ concerns about health risks or made any significant attempt to clean up the region’s water.

Nangsao Witlawan, a former oil refinery worker and Map Ta Phut resident, has stage four cervical cancer and has unanswered questions about her water. But after meeting with officials and company representatives, she still doesn’t know if the water is safe to use or contaminated.

“All the government services — municipalities, public health, the Office of Natural Resources and Environmental Policy and Planning, and the Industrial Estate Authority of Thailand — realized what has been happening with pollution in our community, but they don’t tell or give us the true information,” Witlawan says. “I’ve never received correct and clear information about the water.”

Witlawan’s story, although commonplace across Asia, is surprising in Thailand. On paper, the country has one of the world’s most advanced legal environmental disclosure regimes. Its constitution protects citizens’ right to receive information from the government before the approval or implementation of activities that might have serious environmental, health or quality-of-life impacts on their communities. Nearly ten years ago, it passed strong rules under its Freedom of Information (FOI) law that require officials to proactively disclose environmental and health information to the public. In theory, such legislation should enable Witlawan and all Map Ta Phut residents to access water pollution information. But as a new WRI report finds, implementation of these laws is ineffective, in Thailand and throughout Asia.

The report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand, analyzes vulnerable communities’ access to water pollution information in these three countries. It finds that, like many nations in the region, they have made real progress in protecting citizens’ right to environmental information and enacting laws to ensure governments release water pollution data to local communities. However, as WRI’s study illustrates, weak implementation and limited investments in information disclosure systems are undermining strong “right to know” laws in Thailand, Indonesia and Mongolia. These governments are failing to answer questions about water pollution―information they are legally required to provide.

Proactively Disclosed Information

The Thai, Mongolian and Indonesian governments have made notable progress in establishing “right to know” laws specifying the proactive disclosure of water pollution information. In Thailand, for instance, officials must release companies’ permitting documents, information on the amount of pollutants released, and explanations of public health impacts. Indonesian and Mongolian legislation also mandate that the government provide water quality data, updates on cleanup efforts and information on livelihood impacts. But new research shows that, with few exceptions, these governments are not effectively disclosing the required data, and public access to crucial water pollution information is limited.

Responses to Information Requests

Working with local partners in Thailand, Mongolia and Indonesia, WRI tested the strength of countries’ Freedom of Information laws by tracking 174 local community members’ information requests.

In Indonesia and Mongolia, government agencies ignored over half of information requests, failing to issue even a formal refusal. In some instances, officials asked community members to justify their requests before agreeing to respond, though the law does not require citizens to provide a rationale. Although the Thai government responded to 74 percent of information requests, officials took over 60 days—four times the legally mandated timeframe of 15 days—to reply. Even when officials in all three countries did respond to information requests, they often provided data that related only tangentially to citizens’ questions.

The Ramifications of Poor Implementation

In Map Ta Phut, such poor transparency is undermining public trust in the government. A neighbor of Witlawan’s, Kanis Phonnawin, worries that officials manipulate water pollution data to benefit the estate’s industries. 

“Government agencies paid very little attention to the water problems,” Phonnawin says. “Also, information about each issue released by a government agency always lacks reliability, because most of the information is biased for the sake of petrochemical factories.”

Without the trust of its citizens, a government’s capacity to implement policies, build public support for necessary reforms and enforce the law suffers. A radical shift in information sharing is needed to improve access to water pollution information, restore Phonnawin’s faith in her government, and enable Witlawan to hold companies that do not comply with environmental regulations to account. Improving transparency―not only in Thailand, but across Asia and the developing world―is a critical step forward in the water justice movement.

Protecting Forests with an Unexpected Legal Tool: Freedom of Information Laws

This blog, written by Jessica Webb, Carole Excell and Rachael Petersen,  originally appeared on Insights, World Resources Institute’s blog

Every year the world loses 13 million hectares (32 million acres) of forests, an area about the size of Greece. A critical way to stem this forest loss is to make concessions data about commercial activities that drive over 60 percent of global deforestation more transparent. Without data transparency, it is virtually impossible to tell how well companies are complying with concessions agreements, distinguish between legal and illegal deforestation, and bring those responsible for illegal deforestation to account.

Unfortunately, getting this kind of information in many countries is not easy, as a new study from WRI shows: countries with over half the world’s forests lack comprehensive, accessible information on concessions. Concessions for commercial activities, such as mining, logging and agriculture, are typically allocated to private companies by authorized government entities on lands legally owned or held in trust by the state. This information is critical to enforcing agreements that protect forests.

A recent example is Indonesia, which has some of the world’s richest rainforests and some of its highest deforestation rates. But figuring out the details of Indonesian forest exploitation can be as challenging as it is essential, as a recent Supreme Court decision indicates. In response to a civil society group’s information request, the high court determined that the Ministry of Land and Spatial Planning must hand over detailed maps of the land on which oil palm companies have been licensed to operate. This ruling is a huge step toward greater transparency in the management of Indonesia’s expansive natural resources. It gives journalists, civil society groups and the public the information they need to hold the government and the private sector accountable for deforestation.

Laws that protect citizens’ rights to access information and promote transparency may be a key to protecting and sustainably managing the world’s forests. The WRI study, Logging, Mining and Agricultural Data Transparency: A Survey of 14 Forested Countries, finds that not only are Freedom of Information (FOI) laws effective in getting access to forest information, but countries with FOI laws tend to disclose concession data more proactively than countries without them.

3 Ways to Provide Concessions Data

The study surveyed concessions information for mining, logging and agriculture, noting the different ways this information was made available: proactively, such as through an online data portal; reactively, through an FOI request, or through ad hoc or informal means. Proactively available data is most desirable, as this means it is publicly accessible without the need for requests. Information requests can be an important mechanism to get concessions data if there is no proactive disclosure, and are preferable to no access at all.

Of the 14 heavily forested countries surveyed, eight have FOI laws: Brazil, Canada, Colombia, Indonesia, Liberia, Mexico, Russia and Peru. Researchers tested how these laws were implemented by submitting FOI requests for concessions data, including contracts, maps, lists of permits, ownership information and spatial data. These requests were at least partially successful in all countries where FOI laws were tested.

Researchers were most successful gaining full access to mining data. Four countries provided partial access to both logging and mining data. Agricultural concessions were the most difficult to access in all surveyed countries, where only two of six requests were partially granted (in Indonesia and Liberia). While cost can sometimes be a barrier to accessing official government documents, most information requests in this study did not charge a fee. 

In addition to the relative effectiveness of information requests, the study found that governments in countries with FOI laws release concessions data more proactively than do countries without such laws. For example, the governments of Brazil, Canada and Peru proactively provide data for all sectors for which they grant concessions and have an FOI law, and Mexico, Colombia, and Indonesia, provide proactive data for at least some concessions data. On the other hand, Madagascar, Myanmar, Cambodia and Malaysia lack FOI laws and provide no data proactively.

Though FOI requests can be an important way to get information, larger issues remain. There is still a lack of comprehensive information about where land investments are being made for logging, mining and agriculture in all countries. The study highlights the need for:

  • Adoption of comprehensive FOI laws in countries that lack them now;
  • Civil society to increase use of FOI laws to obtain documents as part of the strategy to monitor and protect forests;
  • Governments to facilitate greater proactive access to concession data by increasing coordination across ministries and between federal and local governments;
  • Donors to invest in building capacity for governments to collate, digitize and share concessions information proactively through online portals and information requests;
  • Voluntary partnership agreements and relevant transparency initiatives should encourage the disclosure of spatial concessions data and ensure standardization across countries.

Even though the Supreme Court decision in Indonesia is a promising move, there is more work to do. It’s time for countries with concessions on forested lands to expand access to concession data and make it priority for immediate action to support enhanced forest monitoring and land use planning, to reduce conflict and to send a message of transparency and accountability to international investors, donors and advocacy groups.

 

Contract Transparency and Environmental Disclosures by Carole Excell, WRI and Rob Pitman, NRGI

Opacity around agreements governments make with companies over extractives and land projects is a serious problem. When citizens are unable to fully comprehend the nature of natural resource projects, misunderstandings and mismatched expectations can undermine trust in government and companies. In the worst cases, this can lead to conflict.

It is for these reasons that NRGI and the World Resources Institute are pleased to see that contract transparency and environmental disclosure are poised to feature prominently in the Paris Declaration, the outcomes document for the 7-9 December Open Government Partnership Global Summit.

The Paris Declaration will highlight collective actions that national and subnational governments and civil society organizations have signed on to. These actions could help meet existing priorities committed to in OGP National Action Plans. Available in draft form on a contribution platform, collective actions cover a wide range of thematic areas. Collective action eight, developed with support from OGP’s Openness in Natural Resources Working Group, directly addresses natural resource governance, focusing on transparency and open contracting in the oil, gas, mining, agriculture and forestry sectors. It reads:

“We will publish the contracts, licenses or leases (including associated geospatial information), which detail the agreements made between companies and the government on natural resources and land projects and the sales of commodities, and we will improve the transparency of the processes through which those agreements are made, in line with the open contracting principles. Partners will also publish information and assessments on the potential social and environmental impacts of these projects, improving accountability and participation in their environmental management.”

We strongly encourage countries to sign on to the action in one of three different ways:

  • Contract disclosure. Disclose contracts, licenses or leases detailing agreements made between companies and the government to exploit or sell natural resources, including the geospatial boundaries of these agreements.
  • Open contracting in natural resources. Make the processes through which companies and governments come to agreements on natural resources more transparent, participatory and accountable.
  • Environmental disclosure and participation. Improve environmental and social information dissemination and citizen participation in processes to determine, monitor and manage environmental impacts.

And for those still wondering what they can do, we have created abriefing that details the ways governments and civil society organizations participating in OGP can achieve real change on these issues. Let’s make the OGP Global Summit a milestone for contract transparency and environmental disclosure in natural resources.

Strengthening the Right to Information for People and the Environment

STRIPE is an important resource in countries all over the world which do not have mandatory environmental disclosure regimes that require companies to disclose the types of pollutants that are being released into air, water, and land. Currently STRIPE is being utilized in Indonesia to help local Serang communities address the water pollution from the IKPP Pulp and Paper mill in the Ciujung River. It is also being utilized in Mongolia where partners are working with two communities concerned about water pollution in the Tuul River caused by mining and poor waste water treatment. STRIPE uses the following steps to achieve its goals:

  • Assess the challenges facing local communities concerned about air and/or water pollution released from local facilities
  • Evaluate the legal framework of the country including the laws governing the pollution control, the public release of environmental information, as well as basic freedom of information laws
  • Analyze the information that is available proactively – information that should be publically available without being formally requested
  • File information requests with government agencies to obtain any further information needed on pollution emissions and permitting abd track the results
  • Utilize the information gained from the above processes to develop advocacy messages and strategies that address community concerns.

Q&A with Alda Salomao: Natural Gas Project Threatens Community Land in Mozambique

By Celine Salcedo-La Viña (Posted: March 5, 2015) 

As the United States and other western countries shift from aid-based engagement in Africa to more trade and investment, it’s important to ensure that investments are environmentally and socially responsible. Investments in agriculture, infrastructure and energy can adversely affect people and the planet if the needs of local communities are ignored. Rural Africans frequently suffer displacement and lose access to vital natural resources as governments acquire their lands and allocate them to local and foreign investors—even in countries where laws recognize community land rights. Alda Salomao is the director general of Centro Terra Viva (CTV), a local NGO working to secure community land rights in Mozambique. While Mozambique has strong community land laws on the books, the provincial and district governments often fail to enforce these laws—especially as natural gas extraction expands. Here, Salomao describes the tension between communities living in the Afungi Peninsula and a natural gas project.

1) Can you give a brief background of the natural gas project in the Afungi Peninsula? About 190 trillion cubic feet of natural gas were found in the Rovuma Basin in northern Mozambique, one of the world’s most significant gas discoveries in the last 20 years. An American and an Italian company, Anadarko and ENI, independently hold offshore concession blocks in Rovuma and have agreed to jointly develop their gas discoveries under the Mozambique Liquefied Natural Gas Project. The companies began the onshore LNG plant development in 2010, selecting the Afungi peninsula as the project site.

2) How did the companies acquire the land? The government issued the companies a land-use right, known as a DUAT (Direito de Uso e Aproveitamento da Terra), for 7,000 hectares in the village of Quitupo and parts of the neighboring villages of Senga, Maganja and Patacua. Officials granted the DUAT to Anadarko and the state-owned National Hydrocarbons Company through a holding company formed by both, with ENI subsequently buying into this company and becoming a co-title holder.

3) Was this land acquisition compliant with Mozambique’s land and other laws? The process of granting the DUAT to the companies was not transparent and ran counter to national land laws. To begin with, the companies involved did not release specifics about their building plan until after they received their DUAT. The 1997 Land Law and 1998 Land Law Regulations, however, require that companies release an exploitation plan before applying for a DUAT for economic activities. More importantly, under the Land Law, local communities hold land-use rights to customarily occupied and held lands, whether or not these lands are formally registered or titled. As rights holders, they are entitled to be consulted and must give their consent on DUAT applications for their lands. CTV found that provincial authorities produced as proof of consent the minutes of a community consultation meeting held in Quitupo, bearing the signatures of community representatives. Some of the representatives deny signing any minutes. It was impossible for some to have signed as they are illiterate, while others on the list deny being present at the meeting. The communities should have also received compensation before the transfer of their land to gas companies as provided in the Land Law.

4) How have the local communities been affected so far? Perhaps the most problematic effect is the psychological, emotional and social turmoil caused by the imminent uprooting and resettlement of the entire community of Quitupo to make way for the project. Villagers in Quitupo, Senga, Maganja and Patacua were caught by surprise when company trucks began bulldozing their fields, crops and trees to make way for roads, landing fields and buildings. Company representatives gave money to villagers as compensation, although it was unclear to them how their land was acquired and how compensation was calculated. And finally, project operations began before mandatory environmental impact assessments (EIAs) and community consultations were completed. These four communities are the most affected, but the whole Afungi peninsula will likely be impacted by the project. The planned industrial city is to occupy 18,000 hectares, overlapping the lands of seven additional communities.

5) How have CTV and other NGOs responded to the natural gas project? CTV closely followed the licensing process for this project, after witnessing irregularities in the 2007 Moatize coal mining project in the central province of Tete, which caused social disturbances and violence in 2010. In an effort to avoid a similar occurrence in Afungi, CTV helped prepare local communities through legal trainings and ensuring access to project information. CTV pushed for community consultations in the EIA process, which was initiated in July 2013, seven months after the DUAT was issued. We mobilized the civil society coalition which is monitoring extractive industries and we launched a media campaign. CTV has also started a legal process to null the DUAT and ensure that future licenses are awarded in accordance with law. The government has charged CTV with promoting disobedience among the villagers. On August 20, 2013, at 6:00 a.m., three armed policemen knocked on my door and escorted me to the police station. They told me that a government official ordered my arrest, complaining that my work and that of CTV were agitating and inciting communities to violence. Officers also said the government was having difficulty communicating with Quitupo village since CTV disseminated information on land and environmental laws. 7) Are there similar cases like this reported in other areas of Mozambique? Unfortunately, there are other cases around the country involving large-scale land acquisitions by investors who fail to respect community rights and laws. The Moatize coal mining project is one example. These incidents demonstrate that beyond laws, we need to address government and corporate ethics.

8) Why is it important for Mozambique and other countries in Africa to provide communities with strong land rights? In Mozambique, the majority of the population lives in rural areas, and land will, for many years to come, be their basis for subsistence and wellbeing. Secure access and rights to land by local communities is a matter of social and economic stability and justice. The government has also proclaimed that agriculture, especially family farming, will remain the most important base for food production and rural development. Rural families must therefore be able to access and use land in a secure environment. The government must do more to prepare its citizens for the challenges resulting from increasing investments in rural lands. They have the responsibility to educate communities on their legal rights, disseminate information on development issues and impacts and include rural communities as actors in the national development process. When the government makes decisions that will have adverse social, environmental and economic impacts on citizens, it must clearly demonstrate how the benefits outweigh these costs. Displacing people from their lands without clear justification and without due process is simply unacceptable. LEARN MORE: Check out our interactive Rights to Resources map, which presents information on citizen and community rights to natural resources in sub-Saharan Africa.

South Africa Reaffirms Right to Access Environmental Information

By Rachel Mulbry (Posted: December 3, 2014) 

For years, residents in the Vaal Triangle, near Johannesburg, South Africa, complained of groundwater contamination from the nearby steel industry. Environmental activists with the Vaal Environmental Justice Alliance (VEJA) realized over a decade ago that having access to information about the industry’s environmental impacts would be essential in order to hold major polluters accountable for potentially illegal contamination. After years fighting in the courts, VEJA’s efforts were reaffirmed on November 26, 2014 by a Supreme Court of Appeal decision that dismissed an appeal by steel giant Arcelor Mittal (AMSA), forcing the company to release its Environmental Master Plan to VEJA. The Master Plan contains the documentation of pollution levels at AMSA’s facilities in the region, as well as its plans for environmental remediation. In their appeal, Arcelor Mittal argued that VEJA’s request to the company for environmental information, made in 2011 under South Africa’s Promotion of Access to Information Act (PAIA), was too vague and usurped the responsibilities of environmental regulatory agencies. The Supreme Court decision countered these arguments, stating that VEJA’s request was made in the public interest. The Court’s decision explained that in order to prove public interest, the requestor must supply a legitimate rationale for why the information is “reasonably required for the exercise or protection of his or her rights.” Arcelor Mittal’s history of environmental contamination in South Africa legitimated VEJA’s claim that access to information about the company’s environmental impacts was in the public interest. The case also highlighted the strategic legal value of comparing a company’s actions to their social and environmental commitments. Multiple annual reports from Arcelor Mittal contain a commitment to engage key stakeholders, including environmental organizations and affected communities. The company’s decade-long refusal to provide VEJA with relevant environmental information despite these commitments highlighted the discrepancy between company policy and actions. Robyn Hugo, an attorney at the Centre for Environmental Rights, which represented VEJA in the case, reiterated that the ruling “confirmed that this approach is not only disingenuous, but unacceptable.” Most importantly, the Court upheld the constitutional provision that “everyone has the right to an environment that is not harmful to their health or wellbeing” and highlighted the intrinsic connection between this right and the right of access to information. As VEJA Coordinator Samson Mokoena explained, “this judgment confirms what we have known all along – that we have a Constitutional right to know what AMSA’s impacts are on our health and the environment. Polluting companies like AMSA can no longer to try to hide this kind of information.” Moving forward, the ruling will have important implications for the governance of resource-intensive activities, including South Africa’s large mining sector. No longer will companies be able to safely assume that they can ignore or refuse requests for environmental information while publicly espousing good governance and a commitment to environmental protection. As the Court ruling concluded, “Corporations operating within our borders, whether local or international, must be left in no doubt that in relation to the environment in circumstances such as those under discussion, there is no room for secrecy and that constitutional values will be enforced.” This is an important victory for VEJA, the Centre for Environmental Rights and the residents of the Vaal Triangle. It is also represents a significant step forward for access rights champions across South Africa. The Access Initiative congratulates all those who worked to achieve this outcome. The complete Supreme Court of Appeals ruling can be found here.

East Kalimantan Community’s Struggles Underscore the Need for Proactive Transparency in Indonesia

By Carole Excell and Cait O’Donnell (Posted October 28, 2013) 

A special thanks to: Ariana Alisjahbana (WRI) for translating the many steps of JATAM’s right to information (RTI) request.

The Indonesian province of East Kalimantan has experienced a mining boom in the last decade. This boom has been decidedly pronounced in Samarinda, its capital, where more than 70% of the area has been allocated to mining concessions. Mining pits have been excavated near residential communities and then abandoned without reclamation and without proper environmental and safety control. As a result, two children were found dead in a mining pit in the outskirts of Samarinda, East Kalimantan in 2011.

JATAM (the Mining Advocacy Network), responded to these fatalities by using Indonesia Public Disclosure Act or Freedom of Information Act (FOIA) as an advocacy tool. JATAM is a network of non-governmental organizations and community-based organizations working on a number of interconnected issues including human rights, gender, the environment, indigenous peoples, and social justice in relation to the mining, oil, and gas industries. JATAM requested environmental impact assessments (EIA), also referred to as the AMDAL process in Indonesia, for all of the coal mining companies operating throughout East Kalimantan (approximately sixty).The organization hoped that obtaining these assessments—which they are legally guaranteed access to through FOIA —could shed light on local coal mines’ contaminants, the mitigation of impacts from mining activities, the monitoring of mining concessions, and other health and safety concerns.

JATAM embarked on their mission to obtain EIAs for every coal mining operation in January 2012. To date, they continue to work on fulfilling this mission. JATAM’s struggle makes it clear that while Indonesia may have a freedom of information law, actually obtaining the government-held information that directly impacts them is exceedingly difficult for the country’s citizens. Kahar Al Bahri, JATAM East Kalimantan’s Coordinator, describes the process of requesting environmental information under the Indonesia’s Freedom of Information law in an interview on YouTube.

1. JATAM initiated this process on January 12, 2012 by sending a letter to the Provincial Environment Agency in Samarinda, East Kalimantan, Indonesia. JATAM received no response. They sent and re-sent letters to the Provincial Environment Agency in Samarinda, the Environment Agency of East Kalimantan, and the Information Commission of East Kalimantan. Still, JATAM received no response. They filed a formal complaint with the mayor of Samarinda, who claimed that the information is private.

2. JATAM sent a formal complaint to the Information Commission of East Kalimantan, which agreed to mediate a meeting between JATAM and the Environment Agency of East Kalimantan. The Environment Agency, however, did not attend the first meeting. At the second meeting, the Environment Agency’s head denied the legitimacy of JATAM as an organization that could file a FOI request. Through the Information Commission’s mediation, the Environment Agency agreed to give JATAM the EIAs in one month.

3. Less than a month later, the Environment Agency claimed that the meeting did not follow the correct legal procedures and refused to comply with the decision. JATAM involved the local court system and, after several months, the court ruled that the Environment Agency had 8 days to comply with JATAM’s EIA request.

4. As of the date of the interview, The Environmental Agency is delaying the request and only issuing one EIA per week. The attached infographic outlines the timeline and the specifics of each step of JATAM’s EIA request.

The Need for Proactive Disclosure

As the process outlined above indicates, JATAM’s success in acquiring EIAs in East Kalimantan was hard-earned. The battle clearly provides justification for the call by advocates around the world that environmental information needs to be proactively available to members of the public without a request. Proactive Disclosure is the purposeful and anticipatory release of information to the public by government. Proactive Disclosure includes making information available to many potential requestors at once in a timely and efficient manner. In 2010, the International community adopted some specific guidelines in Bali, Indonesia, called the UNEP Bali Guidelines, on access to information, public participation and access to justice in the case of the environment, which recognize that: “Environmental information in the public domain should include, among other things, information about environmental quality, environmental impacts on health and factors that influence them, in addition to information about legislation and policy, and advice about how to obtain information.” Environmental Impact Assessments fall into the category of information in the “public domain” which should be made available without a request for information. This is because they facilitate an understanding of environmental impacts and monitoring of industry performance. However, in practice, as can be seen from the case of JATAM, these essential documents are not online, downloadable, or onsite in accessible forms.

Strengthening the Right to Information for People and the Environment

The Access Initiative (TAI) has been working in Indonesia with our partners Indonesian Center for Environmental Law (ICEL) and Wahana Lingkungan Hidup Indonesia (WAHLI) to promote proactive transparency and appropriate implementation of Indonesia’s Public Disclosure or FOIA Law. In a two year initiative called ”Strengthening Right to Information for People and the Environment” (STRIPE), we sought to empower communities in Indonesia to improve their environmental health through improved access to information on air and water quality in Serang and Jepara, Indonesia. The STRIPE project also pointed to the deficiencies in the FOI law and to the importance of increasing the capacity of government agencies to proactively release information. Obviously, there is still much work to be done, but it’s encouraging that a handful of dedicated groups are now endeavoring to bring to light the need for access to information. Through perseverance, groups like JATAM, ICEL, and WAHLI will continue to promote the proper implementation of FOI as an advocacy tool. But perhaps more importantly, they’ll push for the recognition that proactive transparency of environmental information is paramount. Proactive transparency will be discussed at the Open Government Partnership Summit in London this week on Civil Society Day. It is timely for the Indonesian government to consider this approach as it takes on the Presidency of the Open Government Partnership. Timely access to environmental information is what open government is about. More information: Read more about STRIPE here Read an article about STRIPE from TechPresident.com