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Part D: Environment - 38. Environment | 38.2 Impact Assessments and Management Plans

Environmental and Social Impact Assessments (ESIA) and environmental management plans (EMP) are tools widely used by numerous governments when assessing the approval and implementation of mining proposals. These documents are also typically evaluated by lenders when making financing decisions. The government should consider that there are at least two approaches to the use of ESIA: first, as a step to obtain an environmental license prior to the mining activities; secondly, as part of the application process for the mining license. It is essential that mining and environmental laws, as well as related regulations and contracts, never create an expectation that the applicant has a right to have the ESIAs approved or the environmental or mining license granted. It is therefore crucial that the ESIA be part of the permitting process and that the granting of the mining license be conditioned on the approval of the ESIA. Lack of clarity in the mining and environmental laws, regulations and contracts with respect to the role of the ESIA and on the need for it to be approved by the government increases the risk of conflicts and legal disputes. A country should consider completing a Strategic Environmental Assessment (SEA). One benefit for a government to conduct an SEA is to identify sensible zones where mining activities are not desirable and exploration licenses should therefore not be allowed. Conducting an SEA will thus reduce the risk for mining companies to invest on ESIAs for projects with little chances of approval because of unacceptable environmental or social impacts.

Most countries require an ESIA to be prepared (either by the mining proponent or by the government) before issuing government approvals for any and all mining activities, including but not limited to reconnaissance, exploration and mining operation activities. However, if SEAs are the responsibility of the government, conducting an ESIA for a specific project should remain the responsibility of the mining proponent. In the latter case, the government’s role is to provide guidelines for the process, assess the quality of the ESIA report, and accept or reject the project based on ESIA findings. ESIAs are of particular importance in resource rich countries that are environmentally fragile and at risk for social and environmental impacts once large-scale mining operations are underway. EIAs are typically associated with the exploration and feasibility stages of the mining project cycle.

In addition to requiring environmental impact analysis, most countries also require the development and submission of EMPs. Unlike EIAs, EMPs outline mining operations and provide a framework for identifying, managing and mitigating environmental impacts as they arise (both those identified in the EIA and those identified during the course of construction/operations). EMPs are essential for monitoring the obligations of mining companies by the government and should be part integral part of the ESIA process. A key factor for ensuring success in implementing EMPs is to require periodic implementation reports and periodic reviews to adjust to new circumstances during the life of the mine.

Finally, ESIAs and EMPs are closely linked to mine closure and rehabilitation plan, and theses linkages should be properly reflected in mining laws and regulations, in terms of drafting process, approval and periodic reviews.

38.2. Example 1:

Article [_]

(1) Every holder of an exploration license or a mining/exploitation lease shall carry out an environmental impact assessment of his or her proposed operations in accordance with the provisions of [Related Legislation]

(2) The holder of a license referred to in subsection (1) of this section shall commence his or her operations under this [Act][Code][Law]only after securing a certificate of approval of his or her proposed operations and environmental impact assessment from the [the Environment Regulating Authority].

The holder of an exploration license or a mining/exploitation lease shall submit to the [Environment Regulating Authority] an environmental management plan indicating the type and quality of wastes to be generated from any exploration or mining/exploitation operations under this Act and the method of its final disposal.

(4)The environmental management plan may be revised from time to time either by the holder of the exploration license or mining/exploitation lease, or if required by the [Environment Regulating Authority]. Any revised management plan must be approved by [Environment Regulating Authority] before it is implemented by the holder of the exploration license or mining/exploitation lease.

(5) Upon approval of a license and/or lease holder’s Environmental Impact Assessment and Environmental Management Plan, the license and/or lease holder shall carry out an annual environmental audit, and shall keep records describing how the operations conform to the approved Environmental Impact Assessment.

Annotation

Inspired by language from Uganda’s mining law (2003), this provision provides the general requirements for the submission to the government and its review of an EIA and an EMP.

The language, as phrased, does not condition the issuance of an exploration license or a mining lease on the submission of an ESIA or an EMP. Instead, the holder of the license or mineral right is restricted from commencing operations until an ESIA and EMP has been prepared, reviewed and approved by the relevant authority. This may raise conflicts if, based on EDIA findings, the project is not approved.

This proposal, unlike Option 3 below, is general and does not detail the information that must be contained in the ESIAs or EMPs or provide a timeline for government review and approval.

38.2. Example 2:

Article [_]

No person may prospect for or remove, mine, conduct technical co-operation operations, conduct reconnaissance operations, explore for and produce any mineral or petroleum or commence with any work incidental thereto on any area without an approved environmental impact assessment and environmental management plan.

(1) Any person who applies for a mineral right must submit an environmental impact assessment and environmental management plan as prescribed.

(2)An environmental impact assessment must consider, investigate, assess, and evaluate:

(a) The impact of a person’s proposed prospecting/reconnaissance, exploration or mining on the environment;

(b) Any adverse environmental effects which cannot be avoided should the proposal be implemented;

(c) Alternatives to the proposed action;

(d)The relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity;

(e) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented; and

(f) The socio-economic conditions of any person who might be directly affected by a prospecting or mining operation.

(3) An environmental management plan must:

(a) Establish baseline information concerning the affected environment to determine protection, remedial measures and environmental management objectives;

(b) Develop an environmental awareness plan describing the manner in which the applicant intends to inform his or her employees of any environmental risks which may result from their work and the manner in which the risks must be dealt with in order to avoid pollution or the degradation of the environment; and

(c) Describe the manner in which the applicant intends to:

(i) Modify, remedy, control or stop any action, activity or process which causes pollution or environmental degradation;

(ii) Contain or remedy the cause of pollution or degradation and migration of pollutants;

(iii) Comply with any prescribed waste standard or management standards or practices; and

(iv) Rehabilitate the environment affected by the prospecting/reconnaissance, exploration or mining operations to its natural or predetermined state or to a land use which conforms to the generally accepted principle of sustainable development.

(4) Subject to paragraphs (3-4), the [Regulating Authority] must, within 120 days from the submission of the environmental impact assessment and environmental management plan, approve the same, if:

(a) It complies with the requirements of subsection (3) and (4); and

(b) The applicant has the capacity, or has provided for the capacity, to rehabilitate and manage the negative impacts on the environment.

(5)The [Regulating Authority] may not approve the environmental management plan unless he or she has considered:

(a) Any recommendation by the [Relevant Mining Development and Environmental Committee]; and

(b) The comments of any [Admin Reviewer] charged with the administration of any law which relates to matters affecting the environment.

(6) The [Regulating Authority] may call for additional information from the person contemplated in subsection (1) or (2) and may direct that the environmental impact assessment and/or environmental management plan in question be amended and/or adjusted in such a way as the [Regulating Authority] may require.

(7) The [Regulating Authority] may at any time after he or she has approved an environmental impact assessment and environmental management plan, and after consultation with the holder of the reconnaissance permission, prospecting right, mining right or mining permit concerned, approve an amended environmental impact assessment and/or environmental management plan.

Annotation

Inspired by South Africa’s mining law (2002), this provision also includes specific language regarding ESIA requirements as outlined in the United States National Environmental Protection Act, Section 102(2)(c).

This proposed legislative language outlines in more detail the content requirements for ESIA and EMP submissions, and it conditions the issuance of any permits or licenses or the commencement of any operations related to any mining activities on the submission and approval of both an ESIA and an EMP.

Option 2 offers a more comprehensive statute regarding ESIA/EMP requirements, the timeline for their review and approval by relevant government agencies. Governments may instead choose to implement such detailed requirements in regulations versus in the statutory text.