Abstract

The current energy transition has brought about a rise in demand for minerals, key to the just transition from fossil fuels to cleaner energy sources. These are known as critical minerals. Critical minerals are fundamentally the essential component of current technological advances in renewable energy infrastructure such as photovoltaic solar panels, wind turbines, and other electronic devices such as phones, tablets, laptops, and electric vehicles. Mining activities, however, have significant justice implications for the environment and on the communities located near mining areas. Nonetheless, both governments and investors consistently overlook the final stage of the mining cycle, which involves mine closure and rehabilitation. This article uses justice, especially restorative justice, as a medium of ensuring that adequate safeguards are implemented. It also analyses the ramifications of restorative justice on international standards, guidelines, and best industry practices for closure and rehabilitation.

Introduction

Minerals are critical components of many of today’s rapidly expanding clean energy technologies, ranging from solar panels, electric vehicles, wind turbines, and electricity networks. Demand for these minerals will quickly increase as the transition to clean energy accelerates. Their extraction, however, has far-reaching justice implications on both society and the environment—for example, child labour, gender-based discrimination in DRC’s copper and cobalt mining industry. The Copper Belt in the Democratic Republic of Congo (DRC) – accounts for over 60% of total global production [1]. 15-30% of DRC’s cobalt production is from artisanal and small-scale miners who are exposed to hazardous working conditions. [2] With the increase in demand for electric vehicles, the demand for cobalt is expected to surge to 220,000 metric tons by 2025, a 63% increase since 2017 [3]. South Africa’s precious metals mining industry is marred by racial discrimination. In contrast, Chile’s copper mining is responsible for the depletion of water resources across the Atacama Desert since mining requires large quantities of water. [4]

Yet, the impacts are felt beyond the mining activities, which necessitates a proper mine closure regime to avoid the burden falling on the host governments. Australia, home to over 300 mining projects with large reserves of copper, cobalt, lithium, and nickel, has about 60,000 abandoned mines whose responsibility now falls on the state. [5] Mine decommissioning and closure – refer to the process of shutting down mine operations such that the place is left in a safe and stable condition in line with the neighbouring environment. [6] The closure phase mainly consists of the last stages of decommissioning, such as demolition of infrastructure, final land reforming and revegetation activities; it also involves the commencement of a post-closure program. [7] This is why a proper and effective mine closure regime is paramount in mitigating the environmental and social damage of mining activities throughout the entire project life cycle – we believe this can be achieved through the incorporation of justice, more so restorative justice, in all stages.

Why Justice matters–

In this article, we advocate for the incorporation of justice in mine closure due to the justice implications involved. More so, we propose the proliferation of restorative justice as a medium for achieving justice in the mine closure regimes.

Historically, mining took precedence over other land uses, and those involved were only concerned with the economic benefits of mining operations. As a result, the mining cycle has been reduced to two stages: exploration and production/operation. This had far-reaching justice consequences at the end of the operation stage, both environmental and social, because of a lack of proper mine closure regimes; mine sites were abandoned as soon as production ceased, and many mine towns were abandoned. A case in point is the Mogollon ghost town in Southwest Mexico. The economies of Nauru and Ocean Islands have been almost entirely reliant on phosphate, resulting in environmental disaster on these islands, where 80 per cent of the nation’s surface has been stripped mined. By 2000, the islands’ phosphate reserves were nearly depleted. The social and environmental consequences of mining continue to this day, even though significant mining ceased in 1979. Rio Tinto, a leading multinational corporation, was ordered in 2020 to rebuild ancient and sacred rock shelters. It blew up and negotiated a restitution package with Aboriginal groups whose caves had been destroyed. [8]

Times have changed. The best practice recognises mining to be a temporary use of land and that land should be returned to a state of potentially benefiting the community after mine closure. [9] The concept of mining being an activity that renders the land unsuitable for any subsequent use is invalid. Those who enjoy the benefits from the mining activities are held liable for any undesirable impacts of the industry on the surrounding environment and communities. [10] Mine operations negatively impact the environment, such as topography and land reform, flora and fauna disruption, surface water hydrology and ground water disruption, and soil and water contamination. [11] Mining, especially the open cast, affects large areas of land, leading to the creation and dumping of larger amounts of mining wastes, deep pits, waste rock, tailings, steep slopes, and wastewater. [12] On the other hand, impacts on the society include public safety hazards and risk, pollution, disruption of future land use and resource demands and ecological incompatibility, which often persist post-mining. [13]

Understanding Justice–

Justice generally resonates with the notion of fairness and forms part of our day-to-day lives. Since critical minerals are now vital components of the clean energy transition, energy justice has been fronted as a policy vehicle for dealing with the ills of the mining industry. [14] Justice must be the primary consideration in critical mineral development, as critical mineral mining occurs at the expense of the population or marginalised host community. [15] Minerals are typically found in the interior of any resource-rich country, where the communities’ primary contribution is to public goods and existing resources. [16] Justice in mineral development and the extractive industry has been explicitly promoted in legal and regulatory frameworks using local content, social licence to operate provisions, or, more recently, by corporate social responsibility provisions. [17]

Energy justice has developed five major tenets – procedural, distributive, recognition, cosmopolitan, and restorative justice. These mainly relate to the legal processes involved; the distribution of ills and benefits of the energy sector; the recognition of the different groups of people in the society; global impact considerations; and any injustice caused by the mining and energy sector should be rectified for example through enforcement of laws and mine closure measures, respectively.

Restorative justice–

This form of justice is mainly used in criminal law practice. It emphasises repairing the harm caused by criminal behaviour, rather than solely focusing on punishing the offender as per the traditional legal systems. [18] It is also an emerging approach in remedying international environmental harm in environmental law. [19] In energy law, leading researchers have prepositioned it as a vehicle for achieving all the tenets of justice across the energy/mining lifecycle. As such, restorative justice requires decision-makers to engage with justice concerns and consider a broad range of issues, as any injustice caused by an energy activity must be rectified. [20]

According to Heffron and McCauley, applying restorative justice to the energy industry would ensure that decisions are made with the potential for harm and, as a result, the total cost of those decisions in mind. [21] Restorative justice thus brings the energy decision-making process to a close, forcing policymakers to consider what the outcome will be and how they will secure it. Furthermore, the application can be seen in practice in three recent phenomena in the energy sector:

(1) Environmental Impact Assessments and the post-acceptance monitoring phase;

(2) a Social-License-to-Operate that will ensure the development of cooperation with the local community over the lifecycle of the energy infrastructure; and

(3) the Energy Financial Reserve Obligation for covering restoration and clean-up costs. [22]

These applications can also be deduced from some international standards and guidelines and in the emerging best practices adopted by various states and corporations.

Ramifications of Restorative Justice on International Standards and Guidelines

There is no recognised comprehensive international law on mine closure, and this is where energy justice plays a major role. The sector relies on treaties and conventions and other standards that international organisations mainly promulgate. For instance, the Rio Declaration emphasises the right to sustainable development although it does not expressly provide for it [23]; Principle 3 rather requires that the right to development must be exercised equitably to meet the developmental and environmental needs of both present and future generations. Further, environmental protection should form part of the development process, as per Principle 4, whose purpose is to ensure that development decisions do not disregard ecological considerations. [24]

Other examples include the IFC Performance Standards, which were developed to assist companies in managing environmental and social risks and impacts to enhance development in projects financed by International Finance Corporation. [25] Standard 1 advocates for using the Environmental and Social Management System (ESMS) to incorporate elements such as policy, identification of risks and impacts, and management programs in design, construction, operation, decommissioning, closure or post-closure. Similarly, the Equator Principles serve as a risk management framework adopted by financial institutions to determine, assess, and manage environmental and social risk in projects proposed for financing. [26] Principle 2 requires clients to conduct an environmental and social assessment for proposed projects and minimise, mitigate and offset adverse impacts. Principle 3 calls for the adoption and development of the Environmental and Social Management System and the Equator Principles Action Plan for projects with adverse and potential adverse environmental and social impacts, which can be irreversible or largely irreversible.

The Environmental, Health and Safety Guidelines are technical reference documents containing good international industry practices described in the IFC Performance Standards. [27] On construction and decommissioning, the guidelines call for soil erosion and water system management approaches. Land contamination management strategies must also be put to protect the environment post decommissioning, considering the intended land use. Principle 6 of the ICCM 10 Principles call for the rehabilitation of land disturbed by operations per appropriate post-mining land uses and adequate resources to meet closure requirements of all operations. [28] The IRMA Standard, on the other hand, provides valuable guidance in the field of responsible mining, including guidelines on mine closure and reclamation, particularly under principle 4 [29], in line with restorative justice. The principle gives the need for reclamation and closure for ensuring the protection of long-term environmental and social values and ensuring that the community or wider public does not bear the costs. The standard further provides comprehensive reclamation and closure planning guidelines, financial surety for mine closure, and post-closure planning and monitoring.

Ramifications of Restorative Justice on Best Practices on Mine Closure and Reclamation

  • Decommissioning/Designing for closure- Several environmental aspects, such as underground and open-pit mine works, waste rock piles and tailings management facilities, sludge disposal facilities, and water management facilities, should be considered while designing for closure. [30] There should be provision for inspection of what is left behind and prevention of unauthorised access to the site to avoid potential dangers. [31] It is rightly recommended that specific decommissioning management plans are developed in detail for all closure activities. [32] This includes decommissioning plans, site infrastructure decommissioning and destruction, rehabilitation of all disturbance footprints across the project, post-closure monitoring, and the final relinquishment of mineral rights. According to the IRMA Standard, mine closure plans should also include a clear description of the general statement of purpose, site location and background information, facility description, and earthwork. It also calls for intermediate operations and maintenance measures, such as long-term maintenance, post-closure monitoring, a schedule, and a detailed calculation of the expected reclamation, closure, and post-closure expenses.
  • Rehabilitation, reclamation, and revegetation- Restorative justice and best practice require mine sites to be rehabilitated and revegetated on closure. The term “rehabilitation” refers to the process of restoring the environmental effects of mining, and the methods utilised should be compatible and complementary with the surrounding land usage [33]. It can take the form of ecosystem restoration, which involves reintroducing floral and faunal species to create communities with similar biodiversity to those that have not been disturbed. [34] As such, restoration plans should be incorporated into the licencing requirements to account for current uses and productivity before conducting exploration or mining operations.
  • The holistic approach- Mine closure and rehabilitation should be viewed holistically as an integral part of the overall mining operation structure. The management plan for closure and rehabilitation must take into account all aspects of the mining cycle. [35] As a result, efforts should be made during the planning phase to incorporate mine closure plans and provide for the progressive reclamation of disturbed or developed sites. [36] Additionally, the plan must include research and trials to increase its success rate. [37]
  • Review of closure plans– Mine closure plans must be versatile. Throughout the mine’s life cycle, it is necessary to review and revise closure plans. Numerous events can occur throughout the cycle, necessitating revision of the closure plan. These factors may include, but are not limited to, public response to a proposed project, technological advancements, the results of progressive reclamation activities, changes in economic conditions, construction or operation difficulties, and changes in mine operations such as a decrease in production rate. [38]
  • Environmental auditing– In the spirit of Restorative Justice, best practice demands that periodic environmental audits are conducted to determine whether there is compliance with the applicable regulations and the mining closure plans or if other environmental plans and schemes have been implemented. [39] Additionally, the IRMA Standards introduce the concept of post-closure planning and monitoring for geotechnical stability and routine maintenance purposes. This includes surveillance of open pits and underground mine workings, tailings and waste rock disposal facilities, pit water quality, biological monitoring, and water quality surveillance., inter alia. [40]
  • Financial assurances- When a mine closes, revenue from the operation ceases; however, reclamation and closure costs are incurred. As a result, mining companies must provide financial assurance to ensure that costs will be covered in the event of non-compliance with environmental regulations or in the event of bankruptcy. [41] Financial assurance is the provision of security for the mine closure program, and it involves recognition of mine closure and rehabilitation costs. [42] It can be in the form of bank guarantees, insurance bonds, or cash may be required.[43] Acknowledging the closure costs results in more effective operations strategies and enables the planning of additional mitigation strategies and the foresight of progressive closure and rehabilitation activities. [44] The footprint and size of the mine increase with the developing and maturity of the operations, this necessitates financial assurance and provisioning. [45] Financial surety instruments must be independently guaranteed, reliable, and easily convertible to cash under the IRMA Standards. Additionally, independent analysts should evaluate them using generally accepted accounting principles and should not be self-bonding or corporate guarantees. [46] Financial surety terms should stipulate that the surety will not be released until reclamation and closure are complete. [47] Additionally, sustainable development principles require mining companies to adequately consider estimated costs over the mine’s life to provide for them in their financial reporting. Additionally, they require reporting to regulators on environmental bonding, as well as long-term planning and budgeting. [48]

Recommendations and Conclusion

The overarching goal of a mine closure regime is to avoid or mitigate negative long-term environmental and social consequences and achieve desired land use objectives. Thus, care should be taken to ensure that environmental and social safeguards are adequately addressed during mine closure for current and future mining operations. It has been argued that the role of strong government institutions in fostering good governance is critical in natural resource management in particular. [49] This is because resource extraction can affect the quality of governance by laying the ground for corruption due to the enormous amounts of money involved. [50] Therefore, it is necessary to streamline the duties and powers of all different Ministry departments to prevent regulatory gaps. [51] If justice is to be achieved, a properly managed mine closure regime ensures reduced liabilities, adequate financial and material resources, and reduced impacts on local communities that may be economically dependent on mine operations. If not, governments of mineral-rich states will continue to bear the cost of clean-up for current and future operations, which will significantly impact both the environment and society.

Proper regulation of mine closure and rehabilitation is critical when much emphasis is placed on increasing investment in the mining sector. Thus, it is the responsibility of governments to enact adequate closure measures, including financial assurances. Well-functioning mine closure and rehabilitation regimes benefit all stakeholders, including ordinary citizens, communities, the government, and mining companies. Companies can meet financial institution requirements and contribute to the development of host countries through their investments. This enables the government to avoid being obligated to clean up after mine operations. Effective mine closure and rehabilitation regulations ensure that the environment is not irreversibly harmed, and that society continues to exist after mine closure. Due to the sensitive nature of mine closure and rehabilitation, there is a need for a robust legal framework if the broader objectives are to be achieved– this is at the crust of restorative justice! Guidelines and best practices for proper mine closure and rehabilitation should be considered, including the development of closure plans, restoration and revegetation, financial assurances, and review to achieve this. Additionally, the international standards discussed provide benchmarks for establishing an effective mine closure regime.

About the Authors

Susan Nakanwagi is a Research Assistant at the University of Dundee.

Editorial Team

Managing Editor: Naman Anand

Editors-in-Chief: Akanksha Goel & Aakaansha Arya

Senior Editor: Jhalak Srivastav

Associate Editor: Muskaan Singh

Junior Editor: Aribba Siddique

Preferred Method of Citation 

Susan Nakanwagi, “Mine Closure and Justice Implications” (IJPIEL, 13 August, 2021).

<https://ijpiel.com/index.php/2021/08/13/mine-closure-and-justice-implications/>

Endnotes

[1] OECD. 2019. Responsible Business Conduct. Interconnected supply chains: a comprehensive look at due diligence challenges and opportunities https://mneguidelines.oecd.org/Interconnected-supply-chains-a-comprehensive-look-at-due-diligence-challenges-and-opportunities-sourcing-cobalt-and-copper-from-the-DRC.pdf
sourcing cobalt and copper from the Democratic Republic of the Congo

[2] World Economic Forum. September 2020. Making Mining Safe and Fair: Artisanal cobalt extraction in the Democratic Republic of the Congo. Wite Paper. http://www3.weforum.org/docs/WEF_Making_Mining_Safe_2020.pdf

[3] ‘Ethical Supply: The Search for Cobalt Beyond the Congo.’ By Energy Journal – September 11, 2020 (https://theenergyjournal.com/2020/09/ethical-supply-the-search-for-cobalt-beyond-the-congo-2/ )

[4] Lutter, S. and Giljum, S., 2019. Copper production in Chile requires million cubic metres of water. An assessment of the water use by Chile’s copper mining industry. FINEPRINT Brief No.9. Vienna University of Economics and Business (WU). Austria. https://www.fineprint.global/wp-content/uploads/2020/01/fineprint_brief_no_9.pdf

[5] IEA (2021). The Role of Critical Minerals in Clean Energy Transitions. World Energy Outlook Special Report, International Energy Agency, Paris. https://www.iea.org/reports/the-role-of-critical-minerals-in-clean-energy-transitions

[6] Environment Australia, Best Practice Environmental Management in Mining, Overview of Best Practice Environmental Management in Mining. August 2002 at p. 37

[7] Australian Government, A guide to leading practice sustainable development in mining, July 2011 at p. 155 available at https://industry.gov.au/resource/Documents/LPSDP/guideLPSD.pdf

[8] Emily Gosden, 2020. Rio Tinto told to rebuild rock shelters it destroyed. Thursday December 10, 2020, The Times https://www.thetimes.co.uk/article/rio-tinto-ordered-to-rebuilt-sacred-rock-shelters-v9fzl6n65

[9] Environment Australia, Best Practice Environmental Management in Mining, Overview of Best Practice Environmental Management in Mining. August 2002 at p. 35

[10] Ibid at p. 11

[11] Australia Government, Mine Closure Handbook of the Leading Sustainable Development Program for the Mining Industry. Available at https://industry.gov.au/resource/Programs/LPSD/Mine-closure/Sustainable-development-and-closure/Pages/The-environment-and-closure.aspx

[12] Vincent Kedi, Government Perspectives on the Successes and Challenges of Mine Closure, Uganda’s case. Presentation at the IGF Annual General Meeting 26-30 October, Geneva, Switzerland. Accessed via http://globaldialogue.info/Vincent%20Kedi%20-%20Successes%20and%20Challenges%20of%20Mine%20Closure.pdf

[13] Ibid.

[14] Heffron, R.J., 2020. The role of justice in developing critical minerals. The Extractive Industries and Society, 7(3), pp.855-863.

[15] Nkulu, C.B.L., Casas, L., Haufroid, V., De Putter, T., Saenen, N.D., Kayembe-Kitenge, T., Obadia, P.M., Mukoma, D.K.W., Ilunga, J.M.L., Nawrot, T.S. and Numbi, O.L., 2018. Sustainability of artisanal mining of cobalt in DR Congo. Nature sustainability, 1(9), pp.495-504.

[16] Ibid

[17] Sovacool, B.K. and Dworkin, M.H., 2015. Energy justice: Conceptual insights and practical applications. Applied Energy, 142, pp.435-444.

[18] Bajpai, M., 2018. Advancing of restorative justice in criminal law in India and Germany: A comparative study. Journal of Victimology and Victim Justice, 1(1), pp.102-112.

[19] Motupalli, C., 2018. International Justice, Environmental Law, and Restorative Justice. Wash. J. Envtl. L. & Pol’y, 8, p.333.

[20] Heffron, R.J. and McCauley, D., 2017. The concept of energy justice across the disciplines. Energy Policy, 105, pp.658-667.

[21] Heffron, R.J. and McCauley, D., 2017. The concept of energy justice across the disciplines. Energy Policy, 105, pp.658-667.

[22] Ibid

[23] Rio Declaration on Environment and Development (1992) Available at www.unesco.org/education/pdf/RIO_E.PDF; See also Patricia Birnie, Alan Boyle and Catherine Redgewell, International Law and the Environment, third edition, Oxford Publishers at p. 116

[24] Ibid at p.117

[25] IFC Performance Standards on Environmental and Social Sustainability, by the International Finance Corporation under the World Bank Group. Available at https://www.ifc.org/wps/wcm/connect/c8f524004a73daeca09afdf998895a12/IFC_Performance_Standards.pdf?MOD=AJPERES

[26] The Equator Principles. Available at http://www.equator-principles.com/resources/equator_principles_III.pdf

[27] The Environmental, Health and Safety Guidelines. Available at http://www.ifc.org/wps/wcm/connect/3aa0bc8048855992837cd36a6515bb18/4%2BConstruction%2Band%2BDecommissioning.pdf?MOD=AJPERES

[28] ICMM Principles. Available at https://www.icmm.com/en-gb/about-us/member-commitments/icmm-10-principles/icmm-principle-3

[29] IRMA Standard for Responsible Mining, under the Initiative for Responsible Mining Assurances. Available at https://responsiblemining.net/wp-content/uploads/2018/07/IRMA_STANDARD_v.1.0_FINAL_2018-1.pdf

[30] Environment Canada, Environmental Code of Practice for Metal Mines, 2009 at p. 71 available at https://www.ec.gc.ca/lcpe-cepa/documents/codes/mm/mm-eng.pdf

[31] Ibid

[32] Australia Government, Mine Closure Handbook of the Leading Sustainable Development Program for the Mining Industry. Available at https://industry.gov.au/resource/Programs/LPSD/Mine-closure/Decommissioning-and-closure/Page/default.aspx

[33] Australian Government, A guide to leading practice sustainable development in mining, July 2011 supra at p. 159

[34] Environment Australia, supra

[35] Australian Government, supra

[36] Environment Canada, supra

[37] Environment Australia supra

[38] Environment Canada, Environmental Code of Practice for Metal Mines, 2009 supra

[39] Environment Canada, Ibid at pp 5, 48

[40] IRMA Standards, supra, Principle 4.2.6 at pp. 265,266

[41] James M. Otto, Global Trends in Mine Reclamation and Closure Regulations. Pp 251-288 at p.267. Chapter in Jeremy, P.Richards, Mining Society and a Sustainable World, 2009.

[42] Australia Government, Mine Closure Handbook of the Leading Sustainable Development Program for the Mining Industry. Available at https://industry.gov.au/resource/Programs/LPSD/Mine-closure/Financial-assurance-provisioning-and-environmental-liability/Page/default.aspx

[43] Ibid

[44] Ibid

[45] Australia Government, ibid., available at https://industry.gov.au/resource/Programs/LPSD/Mine-closure/Financial-assurance-provisioning-and-environmental-liability/Pages/Financial-assurance-and-provisioning.aspx

[46] IRMA Standards, supra, Principle 4.2.5 at p.264

[47] Ibid

[48] Australia Government, supra.

[49] Choudhury et. al., “Oil: Uganda’s opportunity for prosperity”, Columbia University School of International & Public Affairs, 2012, p. 15, available from: http://www.acode-u.org/documents/oildocs/Columbia%20University%20-%20Uganda%20OIL.pdf

[50] Collier P., & Venables A.J., “Natural resources and state fragility”, EUI Working Paper RSCAS 2010/36, Robert Schuman Centre for Advanced Studies European Report on Development, 2010, p. 1, available from: http://cadmus.eui.eu/bitstream/handle/1814/13860/RSCAS_2010_36.pdf;jsessionid=D9FFA3232C81DA6DF8733B9CF1470E18?sequence=1

[51] Halland et. al., “The extractive industries sector: Essentials for economists, public finance professionals, and policy makers”, World Bank Studies, 2015, p. 36, available from: https://openknowledge.worldbank.org/bitstream/handle/10986/22541/The0extractive0s00and0policy0makers.pdf?sequence=1