3 reasons why Brazil should abandon plans to approve a revised mining code in the next 90 days

After four years of discussion of mining code reforms happening behind closed doors, the Brazilian government has decided to allow just 90 days for public debate on the contents of a revised draft of its 45-year old Mining Code. It’s being enacted on a “legal urgency” basis, but many Brazilians agree that this new bill will have major implications for citizen engagement in decision-making around mining development in the future.

Mining plays a huge role in the Brazilian economy, accounting for 4% of GDP and close to a quarter of its exports. So it comes as no surprise that the Brazilian government prioritizes encouraging investment and keeping mining companies happy. Most stakeholders agree on the need for reform of Brazil’s decades-old mining sector regulations, but civil society groups in Brazil are concerned with the speed with which legislations suddenly seems to be moving.

In a recent interview, Carlos Bittencourt of the Brazilian Institute of Social and Economic Analysis stated that this decision reflects the Brazilian government’s positioning “against debate and citizen participation.” He notes that while government has not committed to meeting any of the demands from civil society, “companies were able to negotiate details of the proposal prior to its submission to Congress, for example, on the issue of taxation and royalty rates.”

Although business and several government agencies engaged on the content of the bill, unions, NGOs, and other civil society actors have been practically absent from discussions.

Why should the government slow down the legislative process to allow space for citizen voices?

1)  A participatory process will help to fill critical gaps in the existing bill.

Civil society representatives have identified critical gaps in the draft bill related to issues such as controlling potential environmental impacts from mining operations, establishing mine closure plans, respecting and protecting the rights of mine workers, and ensuring adequate local community participation in decision-making around mining. Bringing key stakeholders together to discuss and address these issues now will create a more sustainable framework for mining development down the road.

2. The bill must be brought into compliance with international law with regard to indigenous peoples’ rights.

For indigenous peoples, Free Prior Informed Consent (FPIC) – the principle that local communities must be adequately informed about development projects in a timely manner and given the opportunity to approve (or reject) a project prior to the commencement of operations – is established as a basic right under international law. Yet Brazil’s current mining bill fails to require government to ensure that indigenous peoples have the opportunity to give or withhold their FPIC prior to the launch of mining projects. Both the United Nations Declaration on the Rights of Indigenous Peoples and the International Labor Organization Convention No. 169, which Brazil ratified in 1989, explicitly require governments to secure FPIC.

In addition, the Inter-American Court of Human Rights has interpreted FPIC to apply to development projects with significant impacts and has in several instances ruled that states failed to meet their FPIC obligations. In April 2011, the Inter-American Commission of Human Rights called for suspension of Brazil’s massive Belo Monte Dam project in the Amazon rainforest as a precautionary measure in light of concerns about potential environmental and health impacts to indigenous peoples. The Commission asked that the government consult affected peoples prior to further project development. (Brazil broke ties with the Commission as a result).

3. Short-term economic gains made by putting emergency legislation in place too hastily, stand to be outweighed by long term economic risks from potential project delays and stoppages.

Brazil is no stranger to high-profile social protests of late, and government officials should be keenly aware of the costs that these can generate. Just last month over one million people marched in the streets demanding adequate public services and protesting expenses associated with the 2014 World Cup. Protests by indigenous peoples concerned about potential environmental risks posted by the Belo Monte Dam project stalled project construction several times, including twice in May. In neighboring Peru, citizen opposition and protests to Newmont’s Conga mining project have paralyzed the project, and caused Newmont to lose up to a reported USD 2 million per day at one point.

It is in all stakeholders’ best long-term interest to take the necessary time now to get this Mining Code right, to include the necessary environmental and social safeguards, as well as avoiding social conflict. As civil society leaders highlight in a recent public statement:

“In the current context, when people in the streets struggle to be heard and expose the gap between the elected government and the social demands, we ask: why is it so urgent to change a 1967 law? Why did the executive power have four years to discuss the proposal and want the civil society to discuss it in 90 days? The rush to define the future of our non-renewable natural resources doesn’t seem well intentioned to us. We need public debate! We want the withdrawal of the ‘legal urgency’ for the Mining Code.”

This is Brazil’s chance to get regulations in place for the mining sector. This is also Brazil’s chance for a truly transparent and participatory consultation process.

And that’s worth more than 90 days.