The Executive Yuan last month submitted a draft amendment to the Mining Act (礦業法), which is now under review at the Legislative Yuan. The amendment focuses on Article 6 and Article 72-1 of the act, and are aimed at decriminalizing mining activities conducted by Aborigines on their traditional land.
The government said the revisions would recognize the rights of Aborigines over natural resources and meet the basic requirements set by international conventions, such as the UN Declaration on the Rights of Indigenous Peoples and the Indigenous Peoples Basic Law (原住民族基本法).
Statistics show that there are 246 mines in Taiwan, with least 186 still active. The total area of these active mines is 48,953 hectares, or about 1.8 times the size of Taipei.
More surprisingly, more than 80 percent of the active mines are in traditional Aboriginal lands and most did not undergo an environmental impact assessment before they began operations.
Environmental campaigners such as Citizen of the Earth and the Wild at Heart Legal Defense Association, Taiwan have pointed out the significance of assessment requirements, saying the proposed amendment would still be insufficient to protect the environment.
It is the act’s articles 31 and 47 that are the most problematic. They not only allow resource developers to automatically renew their operating permits for existing mines — without a proper safety or environmental impact review — but also deprive Aborigines of their rights to free, prior and informed consent and effective participation.
However, the proposed amendment does not clearly address these issues. Although environmental regulations in many jurisdictions increasingly call for assessments on mining operations, follow-up monitoring remains the weakest stage of environmental management.
A recent study revealed that, even though an assessment is mandated by law, there is no guarantee that related monitoring can truly be sustained over the entire lifespan of large mining projects.
To respond to this challenge, new opportunities and techniques for improving civil participation have been created through the negotiation of environmental agreements between affected communities and mining industries. This new policy development is now common in the natural resource sectors of developed economies such as the US, Australia, the EU and Canada.
For example, the agreement negotiated between BHP Billiton and community groups for the Ekati diamond mine in Canada established an independent assessment follow-up monitoring agency, which includes members of indigenous communities, government agencies and the company.
The agreement requires the company to establish environmental management plans, submit detailed compliance reports and implement a closure and reclamation plan.
In addition to various successful individual environmental contracts, international organizations, such as the World Bank and the International Bar Association’s Mining Law Committee, also provide useful model mining development agreements that can serve as the benchmark for negotiation and international practices.
These international lessons show that trust among stakeholders is vital for sustainable mining. Taiwan should create policy incentives for innovative environmental contracting and balance the bargaining power between corporations and communities (especially long marginalized Aborigines).
The first step would be to enhance data transparency of the mining sector.
Yang Chung-han is a doctoral candidate at the University of Cambridge and a member of the Taipei Bar Association.
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