EBRD Draft Mining Strategy in its section 4.3 STAKEHOLDER ENGAGEMENT AND CONSULTATION admits that “the situation in many of EBRD’s COOs with respect to stakeholder engagement is challenging and … that mechanisms for stakeholder engagement have often been lacking or poorly applied and experience in good stakeholder engagement and management is often lacking, both by companies and authorities”. The Strategy acknowledges many disadvantages to the projects and the communities associated with this problem.
Meanwhile, the Strategy in the same section gives an explicit reference to the UNECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention). This is a sole mentioning of a specific multilateral environmental agreement in the whole text of the draft Strategy which shows Bank’s special attention to transparency, public engagement and accountability commitments envisaged in the Convention.
In “bank approach” paragraph the Strategy refers to the EBRD’s stakeholder engagement requirements found throughout the ESP and Performance Requirements and the Public Information Policy. The Strategy also clearly states that the Bank has also [decidedly – in Russian text] committed to the spirit and the principles of the Aarhus Convention. Unfortunately, this is not always true for EBRD COOs.
Starting from 2005, many (9 out of 29) of the EBRD’s COOs have been found by the appropriate bodies to be in the state of non-compliance with the Aarhus Convention. The Second Meeting of the Parties to the Convention (MOP2) found the following countries to be non-compliant with various provisions of the Convention (Kazakhstan, Ukraine, Turkmenistan), MOP3 – (Albania, Armenia, Kazakhstan, Lithuania, Ukraine, Turkmenistan), MOP – 4 (Armenia, Belarus, Kazakhstan, Moldova, Slovakia, Ukraine, Turkmenistan). As of today 7 of EBRD’s COOs officially remain in the state of non-compliance.
In all the mentioned countries not only specific breaches of the rights enshrined in the Convention occurred in certain projects. The Aarhus Compliance Committee (ACC) acknowledged systemic failure of the given domestic legal systems to ensure these rights. For all the countries at question the ACC and the MOP made recommendations to establish\develop a lacking legal framework implementing the Convention. However, some of the countries for seven years already have been failing to fulfil these recommendations. International sanctions such as cautions were imposed by the MOP on Kazakhstan, Ukraine, and Turkmenistan.
Moreover, the national implementation reports show that most of the former Soviet countries (all except for the Baltics) are very slow in implementing the Convention. Russia and Uzbekistan have not even ratified the Convention yet.
The EBRD’s mandate which is to fosters transition towards open and democratic market economies cannot be thoroughly fulfilled, if not combined with straightening participatory democracy and accountability of business and authorities.
Taking into account stated above Environment-People-Law urges EBRD to use its leverage to encourage full implementation of the Aarhus provisions and principals into COOs’ domestic legal systems. We believe the Bank should be constantly sending the COOs governments a clear message on urgency to implement the Aarhus commitments by taking the necessary legislative, regulatory, and administrative measures and practical arrangements. Starting with the Mining Strategy in 2012, continuing with the Environmental and Social Policy as well as Public information Policy in 2013 and further on the Bank should take a strong position as to the Aarhus Convention and mirror it in its strategies, policies, programs and projects.
Environment-People-Law proposes to add the following sentences to the “bank approach” paragraph of the Section 4.3 of the Draft Mining Strategy:
“Through active policy dialogue and technical cooperation support to the COOs Governments the Bank will promote the introduction of the Aarhus provisions into domestic legislation, inter alia, the Bank will support the creation of transparent and coherent legislative and regulatory frameworks for environmental decision-making with appropriate access to information and stakeholders engagement provisions as well as support institutional capacity building within the authorities to allow meaningful public participation in environmental decision-making”.
For further information please contact:
Head of Legal Department at Environment-People-Law
tel. +38 032 225 76 82