Siegele and Pring - The Law of Public Participation in Global Mining

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Transparency and Accountability

Policy, Legal and Contractual Framework

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Siegele, L., Pring. G., The Law of Public Participation in Global Mining, in International and Comparative Mineral Law and Policy, Trends and Prospects, Bastida, E., Wälde, T., Warden-Fernandez, J., (eds.), (Netherlands: Kluwer Law International, 2005)

The paper provides an overview of the growing number of public participation requirements in international law in relation to mining, energy and resource development.

In recent years there has been a surge in what the author dubs a ‘participation explosion'. Simply put, the emergence of public engagement, civic involvement, stakeholder consultation, indigenous peoples’ rights and so on. By whatever name they are referred to, the general consensus, it seems, is that by whatever means possible the governed should be actively engaged in their own governance. The paper traces the historical origins of this current upsurge in public participation citing the underlying rationales behind the concept by tracing the ‘public participation’ requirement in international environmental legal regimes, specifically citing the gradual erosion of the absolute sovereignty of the state as a likely point of advent and propelled by events such as trans-boundary environmental degradation and international resource depletion.

The paper goes on to detail some specific provisions of public participation and matters that are typically addressed when framing policy in this area. They cite three pillars of public participation which include: access to information, public participation in decision-making and access to justice. These are illustrated by an overview of some of the major international instruments which attempt to address these principles. They also touch on some of the soft-law or non-binding instruments utilized, including various human right instruments, and the growing need for international financial institutions to assess risk based on similar principles.

In conclusion, the authors recognize that as public participation becomes increasingly institutionalized and more pervasive internationally there will be a corresponding paradigmatic shift in thinking leading to a culture of participation naturally engrained in any legal system. It is argued that when these principles are truly integrated into the workings of governments and businesses, as well as into the thinking of the public, an international culture might develop where ‘public participation’ also becomes an accepted cost of doing business.

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