CHAPTER 14 MINING IN THE CONTEXT OF THE SUSTAINABLE DEVELOPMENT GOALS
| Jurisdiction | Derecho Internacional |
MINING IN THE CONTEXT OF THE SUSTAINABLE DEVELOPMENT GOALS
Barbara Dunin 2
Adriano Drummond Cançado Trindade 3
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ELIZABETH BASTIDA is a senior lecturer specialised in law, policy and the governance of natural resources - with specific expertise in mining and minerals - and their transformation in the context of Agenda 2030. Her work encompasses international, comparative and multidisciplinary approaches to the study of law, and multi-level and multi-stakeholder perspectives in the analysis of law and governance, with a particular focus on mining and minerals. She publishes in law, development and economics journals. She works on two interconnected areas of enquiry in her current research. On one hand, on the interface between global production networks and natural resources extraction, and their impact on local development due to 'governance gaps'. On the other hand, on the role of law and legal systems in promoting the Sustainable Development Goals. She is interested in the extent to which law can promote or hinder equity and social justice and democratic governance. She approaches the study of the law applicable to mining and minerals from these perspectives. In the first years of her academic career she focused particularly on the study of Latin American regimes and it is still an important area of my research, even if she has expanded the scope of work to encompass a global perspective. Professor Bastida collaborates with various organisations, acting as external advisor to governments and institutions. These have included assignments with governments (Argentina, Armenia, Cô´te d' Ivoire, Ecuador, El Salvador, Ethiopia, Georgia, Haiti, Mozambique, Mongolia, Montserrat and St Helena Islands), intergovernmental organizations (IADB, UN, UNECA, IFC, World Bank, GIZ, DfID), companies (Anglo American, Rio Tinto, De Beers) and non-governmental organisations (IUCN, RWI, Global Witness, Open Society Justice Initiative) as well as corporate institutions (International Tin Research Institute). She has participated in major international initiatives aimed at transforming concepts and practices in the sector, including the Mining, Metals and Sustainable Development Project (MMSD) (2002), the International Study Group for the Review of African Mining Regimes (a technical taskforce of which developed the African Mining Vision) as a member (UNECA, from its inception in 2007), and the Model Mining Development Agreement Project (IBA, 2009). Her academic career started as a research fellow at the Institute of Social and Legal Sciences 'Ambrosio Gioja', Law Faculty, University of Buenos Aires. She practised law with the firms Tomô¡s de Pablos & Associates, and Hope, Duggan & Silva in Buenos Aires, with responsibilities in the Mineral and Environmental Law section. She is a qualified lawyer in Argentina (Specialisation in Natural Resources Law, University of Buenos Aires (cum laude); LL.M in Resources Law and Policy (CEPMLP, Dundee; with distinction), Ph.D (CEPMLP/Dundee). Member of the Environmental Law Group of the International Union for the Conservation of Nature (IUCN) from 2000; Programme Officer of the Mining Law Committee, International Bar Association; nominated in the Who's Who of Mining Law consecutively from 1999; member of the Academic Board of Revista Argentina de Derecho de la Energía, Hidrocarburos y Minería; associate editor of Resources Policy; member of the Editorial Board of RAW Talks -rawtalks.org an innovative platform on resource governance and economics-; former Deputy Managing Editor of the Journal of Energy and Natural Resources Law.
BBARBARA DUNIN: For twelve years working with UN initiatives focused in private sector engagement for sustainable development, Barbara Dunin is adviser at Global Compact Network Brazil since 2013, where she contributes in the areas of governance and strategy, as well as in the development of projects and partnerships related to the Sustainable Development Objectives (SDGs). With bachelor's degree in social communication from PUC/PR and MBA in Strategic Management from Fundaçôo Getulio Vargas, Barbara is coursing the Professional Master in Management and Public Policy at EBAPE/FGV.
ADRIANO DRUMMOND CANçADO TRINDADE is of counsel at Pinheiro Neto Advogados in Brasília, Brazil. He has been providing legal advice for years to clients in connection with the mining sector, including regulatory matters, mining policy, M&A, contracts and communities, among other mining-related subjects. Mr. Trindade is also a Lecturer at the Law School of the University of Brasília (UnB) and a researcher of the Natural Resources Law Group (GERN) of that same University, where he coordinates the mining law research area. Mr. Trindade graduated from the University of Brasília and obtained his Masters degree (Distinction) in Natural Resources Law and Policy from the Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP) at the University of Dundee, United Kingdom. He has published articles and delivered conferences and training courses in Mining Law issues in Brazil and abroad.
In 2015, the General Assembly of the United Nations adopted Resolution 1/70, which approved a new agenda for sustainable development to be achieved by 2030 and, as part of it, a set of 17 goals known as the Sustainable Development Goals (SDGs). The Resolution has been influencing States in the negotiation of treaties and passing of legislation, as well as companies in the design of business strategies, and their approaches to social and environmental matters. The purpose of this paper is to assess how the SDGs may affect the mining sector, its companies and operations. For that purpose, the first section will discuss the SDGs and their main principles. The following section will be dedicated to reviewing the evolution of the SDGs documents in international law, and will incorporate the mining sector in the discussion. The third section will then assess the SDGs as legal obligations, and ways of implementing them. It will also touch upon the role of private businesses in the SDGs, and the contributions and challenges that may be encountered. The last section will be devoted to the implementation of SDGs in the mining sector, so as to wrap up the discussion undertaken in this paper.
I. THE EMERGENCE OF THE SDGs AND THEIR MAIN PRINCIPLES
On 25 September 2015 the United Nations launched a new development agenda for the next 15 years. The SDGs (2015 to 2030) were validated by all the 193 member states, establishing a new path to align global priorities focusing an economic development that takes into consideration people and planet. The launching of the 17 Goals represented an affirmative response to the worth
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of global voluntary development agendas, giving the significant results accomplished by the Millennium Development Goals (MDGs - 2000 to 2015). The MDGs were a case of success considering the world achieved tangible improvements in the overall of 8 Goals.
In the case of Brazil, for instance, the country had also a good performance in the priority areas of MDGs. According to Brazilian Government official data, the MDG 1 of reducing hunger and extreme poverty by 2015 to half of what it was in 1990 was achieved by Brazil in 2002. The national goal of reducing the percentage of poor to ¼ of 1990, although more ambitious, was also fulfilled and surpassed in 2008.4
Considering some lessons learned with the MDGs, during 2012 to 2015, the UN stablished the broadest global consultation to build the so-called Post 2015 Agenda, listening not only governments and civil society but also strategic stakeholders like academy, private sector and investors. Through its main channel with companies, the UN Global Compact, the United Nations consulted more than 1,500 business leaders in 20 countries. The outcomes of this process can be found in Engaging with the Private Sector in the Post-2015 Agenda: Consolidated Report on 2014 Consultations report, developed in partnership with UN Industrial Development Organization.5
The SDGs are an important part of a broader document called Transforming our world: the 2030 Agenda for Sustainable Development (approved unanimously by the General Assembly of the United Nations through Resolution 1/70)6 is based in three important principles: (i) universality; (ii) balance of triple bottom line concept; and (iii) data disaggregation. For universality it is meant that this is an important agenda for all countries despite being developed countries, developing countries or least developed countries. In fact, the SDGs establish a transformation lead role for the rich countries, especially in terms of sustainable production and consumption models. Is important to stress, though, that universality is different from uniformity. In other words, the agenda is equally important to all countries, but every nation will define the institutional arrangements and the public policies to accomplish every goal.
The balance in the sustainable development triple bottom line concept reveals an important achievement in the creation in this agenda, also built in lessons learned with the MDGs. It promotes a systemic vision of the sustainable development that is broader than the MDGs priorities, which were very focused in poverty in all forms by having the social aspect as the focus
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of the agenda. The SDGs offer a route to the world based equally in the economic, environmental and social pillars - the three pillars of the triple bottom line concept. This is an important characteristic of the agenda because it assumes the economic development as a process that shall not be conducted apart from people and the planet, but totally interconnected with these two spheres.
Finally, the data disaggregation is the principle that goes back to the Post 2015 Agenda...
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