Transcription
Okay, I think we can get started, and um, everyone else can keep trickling in. Um, thank you all so much for, um, joining us, um, including our panelists, um, for a discussion of this very important topic on mining standards, private audits, and, uh, certification: local experiences and global implications. Um, this webinar has been organized by a working group of the Yes To Life No To Mining Network, that's focusing on the greenwashing of mining, particularly for so-called, um, critical energy transition minerals. Um, so my name is Jessica Ing. I am a member of the Center for Interdisciplinary Environmental Justice and the Yes To Life No To Mining, uh, Network. I am based on Lenca land in New Jersey in the United States. And, uh, Guadalupe, would you like to introduce yourself briefly? Um, and Guadalupe Rodriguez is, um, also helping to moderate as, um, another regional contact point for Yes To Life No Mining, um, based in Spain, um, who will also be helping with some of the translation as needed. So we're going to do our best. We're, um, doing this primarily in English, but some of the panelists are going to be speaking in Spanish as well. Um, so we appreciate your, uh, patience as we, um, move along. So just so you have an idea of, um, the format of the webinar, for the first 50 minutes or so, we will hear from, um, four sets of speakers, starting with the presentation of the statement written by the Yes To Life No To Mining Network, um, on why mining certification schemes are not a solution. Um, and then we'll hear from activists in, uh, Argentina and Brazil about local experiences with, uh, certification programs. Um, and finally, we'll hear about how these initiatives are being incorporated into European legislation and, um, some of the implications of that. And then for the remaining time, which, um, should be about 40 minutes, we will open it up for questions and answers. Um, so please, uh, feel free to submit questions using the Q&A feature, um, throughout the presentations, and, um, we will address some of them at the end. So with that, um, I will turn it over now to, um, Jen Moore to get us started on the statement from, um, Yes To Life No To Mining, which, um, Guadalupe has just put into the chat for everyone to read and share, um, as you see fit. Um, so Jen Moore is one of the regional contact points in Latin America for the Yes To Life No To Mining Network. She is based in Mexico City and is part of the Rym Collective, a member organization of the Mexican Network of Mining Affected People, or RMA, by its initials in Spanish. Um, so Jen, go for it.
Thanks very much, Jessica. And, um, thanks very much for the, the, uh, invitation to participate. Before I begin, I just want to mention that RMA, as a member organization of Yes To Life No To Mining, has for some years, uh, maintained a position against certification as a false voluntary solution to what's an unaccountable industry that benefits from tremendous impunity and causes tremendous destruction. And very much welcomes the declaration that the network, uh, just released a few months ago, "10 Reasons Certification Schemes Are Not a Solution." I've been asked to provide a brief introduction to the declaration, and I'm going to try to keep my remarks brief, uh, to give more time for the examples of how these certification systems pose a threat to mining-affected people, including the problematic movement to incorporate these into legislation. Before I get into the essence of the declaration, I just want to comment again on what is certification. In addition to being voluntary schemes that are based on a certain standard, um, which is often the time, the, the part that civil society organizations tend to put their focus and attention on, underlying this, the certification itself is facilitated by a contractual relationship, uh, between a company seeking certification and a certifying body that has been charged with measuring company performance against the standard, and whose business model relies on maximizing positive decisions and awards. Certification bodies in themselves are in fact an industry with an inherent conflict of interest that gives them an incentive to ensure positive outcomes. Many standard-setting groups are principally industry-led and run, but some do involve non-government organizations or multi-stakeholder groups whose credibility is harnessed to lend value to their certification. Multistakeholderism masks the persistent asymmetries in terms of power, influence, time, and resources amongst those members, and in addition, the overall scheme is still reliant at its core on a certification body in contract with a company, and is subject to considerable industry pressure to make their standard manageable, weak, or downright meaningless. One of the founders of the forest certification system, Simon Council, who's now a fervent critic of these systems, calls civil society involvement in these schemes "trading in credibility," or just another way that the legitimacy of civil society efforts and even community struggles are used to help companies put a new shine on their public relations, to gain market access, while they fail to address the expansion and devastation that these industries cause. In mining and the mining sector, certification processes, they're not new, they're diverse, they're numerous. A considerable number have to do with conflict minerals, such as blood diamonds or minerals extracted from the Great Lakes region of Africa. Others have to do with the management of substances such as cyanide or certain aspects of the mining process. And others are about certifying the mine or mineral as somehow more responsible, clean, green, or sustainable. And they may be incorporated into legislation as a form of privatizing regulation, which we'll get into. We're going to hear more specific examples that build on all of this, um, from our other speakers. Um, but I want to turn to Yes To Life No To Mining's "10 Reasons Why Certification Schemes Are Not a Solution." And this really comes out of a deep concern within the network about how these are a dangerous form of greenwashing and yet another misleading, distracting, and damaging tool that help mining companies gain a foothold in communities and further legitimize and enable the social and environmental destruction that this industry brings about. I'm going to paraphrase, paraphrase. I, I, I don't have slides to share today, um, but I'm going to paraphrase sort of the main, um, ideas that are laid out in the 10 reasons and really encourage you all to read closely, um, the, the short document that the network has prepared. First of all, certification schemes mask the reality that nothing has really changed. At a time when the mining industry is working really hard to reposition itself for major expansion with support from the World Bank, once again, rich governments, and many others, following on the heels of the COVID-19 pandemic and in the context of the capitalist energy transition, certification is a tool being used to try to say that this time things will somehow be different, even while the same free trade agreements, neoliberal mining laws, environmental deregulation, and rising violence against land and environment defenders keep deepening the harms and hold impunity for those harms in place. Second, certification schemes can facilitate more mining destruction. These certification systems are not questioning the impossibility of mining ever being sustainable, or the wisdom of giving the endowing of the notion of responsible mining with meaning when this is a tool that governments and industry have long used to discredit community resistance to mining, and remains one of the most destructive on the planet. It is also a private model with corporate interests at its core. The standards are principally crafted in the Global North and principally respond to company concerns and interests. And where community rights may come into play, if they do at all, there's a serious question about offloading responsibility to a private profit-driven certification body to assess these. There are also a further burden on scarce community time and resources, um, a distraction for already overstretched communities. For instance, in the cases where site visits may be undertaken, these demand a community's time, attention, and resources to the extent that they are engaged or decide to engage at all, without any guarantee whatsoever that the results will not be used merely to show the company as more responsible or lead to more empty promises that probably will never come to fruition. Furthermore, impunity continues to be the, um, the state of play. These mechanisms do not get us anywhere closer to greater accountability for the tremendous harms of the mining industry. And finally, and importantly, these certification schemes may further erode public control and contribute to corporate capture. Disturbingly, the industry has been pushing for certification schemes to be incorporated into legislation, and we're going to hear a little bit more about that today. When this occurs, it puts the same technocratic certifiers in charge, further privatizing government responsibilities to protect people and the environment and to regulate a private sector. In other words, and in conclusion, certification doesn't stop, but rather contributes to the expansion of mining frontiers. It also doesn't resolve the prolific conflicts this industry creates or the problem of impunity. Rather, it's another tool that corporations and their supporters have at their disposal to help, uh, engineer their way into diverse territories. And these certification mechanisms also become another tool and myth of the mining industry that we need to learn to avoid and learn to debunk. Um, and the network really believes that all of the time, energy, and resources that some groups are dedicating to such mechanisms would be much better spent working to address the root problems, including to stop unsustainable production and consumption of disposable goods that are not themselves going to resolve the climate crisis, and that we need an energy transition that does not rely on more sacrifice zones, but rather that respects people's self-determination to say no, while instituting binding means to hold corporations to account for the harms they have and continue to create. I'll leave things there and pass things back to you, Jessica.
Thank you so much, Jen, for that overview and, um, summary of the, the statement overall. I think that sets us up really well for the next speakers. Um, so next, we're going to hear from, um, Veronica Gisa and Elizabeth Mamani. So Veronica is a lawyer and environmental activist. She is a member of the ASPO, which stands for, um, and, and she is, um, an Argentinian coordinator of OPAL, which is the Observatorium. And, um, Elizabeth is a member of one of the original communities of the, um, in the, of Argentina and a member, as well, of OPAL. Um, so Veronica and Elizabeth, go for it. And, um, sorry, I will share the, um, um, yeah, I think that'll be easier.
Hola. Good morning. Thank you very much for this invitation. I'm sorry for my English, really, like, basic. I'm going to to read the text and and share this presentation.
Yes, we can see that. Thank you.
Okay. Um, well, my name is Veronica. In, in the, I'm here in Catamarca, Argentina, in the Salar. This picture we are seeing right now here in Catamarca, the company Livent has been extracting lithium since 1997. In other words, for us, the extraction of lithium from salt flats is not new at all. Not only is it not new, but we are the real negative example due to the social, communal, and environmental damage caused by extractivism. In the year 2000, Livent dried up the wetlands of the Trapiche River as a result of extracting millions of liters of fresh water from there. Reports from the Secretary of Mining in of the province of Catamarca mention that this damage is irreparable, and the river remains dry to this day. From there is where I am speaking to you today, and where I want us to say throughout this conversation, it's not about hypothetical and imaginary cases. It's about a real case and a witness to the damage and destruction of the territory. Well, in, we want to to highlight that in May 2021, we held a video call meeting with Rym members in which we we listed and announced the concerns and the damage, both social and environmental, that the company has generated in the territory. This seems to have been ignored, and therefore, we want to express once again the reasons why we continue to reject the continuity and expansion of lithium mining activity in the Salar del Hombre Muerto by Livent, as well as the other projects present in our territories. In, in November 2022, the indigenous community, well, we found out that Rym was initiating the certification process for Livent, and the indigenous community presented a statement to Rym denouncing all the violations of environmental rights and indigenous rights. This is important to to say, the, the absence of cumulative environmental reports, cumulative environmental impact assessments were not conducted. There are more than 10 lithium extraction projects in the same salt flat. Here is the map of the Salar, and in the other way, the Maricunga. We have no access to justice from our community. We have made administrative presentations with more than 200 signatures in the Secretary of Mining of Catamarca, and, well, and legal actions, habeas corpus, we said, and at the Supreme Court of Justice of Catamarca, where we demand the suspension of the construction of the aqueduct and the expansion where of the Fenix project to be stopped. Fenix project is the project from Livent company. Violence and criminalization. Over the last few years, Livent company, along with the local government, have systematically used practices of institutional violence and criminalization to intimidate and silence communities that have raised their voices in defense of water and land. And here I, I, this is a poem by an indigenous writer. My love, I came from the future. You are there, but the river is not. In this picture, we can see again the results of extraction of lithium in Catamarca, and why we understand that this certification, this process, is like the a new phase from all the destruction, historical destruction from the Global South. Well, and last but not least, I present to you the Los Patos River. This is the most voluminous river in the salt flat, and is, is currently in danger. There are no studies regarding the behavior of the river. In other words, it is unknown. However, the government of the province of Catamarca is granting permits of lithium mining companies to extract millions of liters of fresh water from there. We don't want more dry rivers. We don't want more extractivism, and we don't want more green certificates for the destruction of life and salt flats. Well, here, I think we are discussing if we want life or we want death. Thank you very much.
Thank you, Veronica. Um, and Elizabeth.
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Um, um, is for,
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for yes.
Um, so Elizabeth says that she wants to explain about how mining H projects are being opened in the region without any environmental control of the authority, the, the provincial authority, and also without any informative ER,
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sessions. Yes, there's no free, prior, or uninformed consent H session, any kind of it. So the population really needs to struggle to get this kind of ER opportunity, which is not happening.
Elizabeth,
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uh, there's a lot of, uh, mining projects. There are many. It's around 40 in Antofagasta, 12 in Salta, including the one from Livent that is has already been mentioned.
Elizabeth,
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uh, what is been said in relation of Rym is that, um, things, it is said that that things, um, are being done well, that there's an environmental control, and that the sacrifice, ER, villages or communities, ER, are okay with what's happening in the region. But that's not really what's happening there. ER, at this moment, the damage is already done, and it's going to to be made, still going to be made.
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Elizabeth,
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okay. Um, so Elizabeth was just saying that that's sort of all for now, but there's a lot to say. And so if there are more specific questions, um, or aspects that people are interested in, please, um, send questions through the Q&A, and, um, she can address those more, uh, directly at the end. Um, but for now, let's turn next to, um, Danilo Chamas, who is joining us from Brazil, where he is a human rights lawyer living in Brumadinho, and is the president of the NGO, um, in, um, Danilo has been working with the Association of Relatives of Victims of the Brumadinho Dam Collapse in their fight for criminal justice in, uh, Brazil and in Germany. So, um, Danilo, it's all you.
Hi everyone. Uh, yeah, my name is Danilo Chamas. I live in the countryside of Minas Gerais, Brazil. In the last 15 years, I have been working to hold accountable some actors who commit crimes, environmental damage, and human rights violations in the context of mining conflicts. I'd like to thank the organizers for the invitation and thank you all for your understanding of my English pronunciation mistakes. In the region of Brumadinho, a group of local residents have been monitoring mining operations for many years. Iron ore mining activities began in the 70s in this region. Some dams were built to receive the tailings from mining extraction. These structures have served this purpose for decades. That group of local people put a lot of energy, legal, and technical knowledge into advocacy actions. These initiatives sought to prevent the approval of the mine expansion project with commercial exploitation of the tailings deposit in the dam. Their most important battle was in 2017, 2018. Those defenders failed. They were ignored, discredited, insulted, and stigmatized as enemies of development. In December 2018, the authorities granted Vale, the mining company, the environmental license. A month later, the dam collapsed. The Brumadinho dam collapse in Brazil in 2019 killed 272 people, to whom I pay tribute now, and released toxic sludge into the surrounding environment. It contaminated the Paraopeba River, which historically supplied thousands of people. This is a tragic example of the hazardous combination of for-profit extractivism, state negligence, and corruption within the safety certification industry. As the Brazilian state outsources dam safety monitoring to private certification companies, the accountability of these companies must be commensurate with the critical role they play in ensuring the safety of people and the environment. The investigations in Brazil into the dam failure revealed substantial evidence supporting the criminal prosecution of 11 employees of the mining company Vale and five employees of the German certification company TÜV SÜD. Four months before the dam failed, German certification company TÜV SÜD, headquartered in Munich, confirmed the dam's stability. TÜV SÜD has subsidiaries worldwide. Engineers from the Brazilian subsidiary, based in São Paulo, issued a certificate declaring the dam stable. In addition, witnesses reported that a TÜV SÜD employee from Munich regularly visited Brazil. Here is the certificate, uh, by TÜV SÜD, concluding that the dam, uh, was stable. This was in 2018. According to the applicable Brazilian law, when a dam is certified as not stable, there must be a public alert. Extractive activities must be stopped. The company became obliged to remove and relocate all people situated downstream in the so-called flood zone in the mining mining area. In Brumadinho, there were administrative buildings and also a cafeteria just below the dam. The collapse occurred at lunchtime. The cafeteria was full of people. Of the 272 lives lost, 240 were mine workers. Many of the victims had their bodies torn into pieces. Others died of asphyxiation. We will never know how intensely each one suffered. All these violent deaths could have been avoided if the mining and the certification companies had acted properly. As stated by Brazilian prosecutors, "proud certification has negatively and decisively affected the prioritization of the allocation of resources and efforts to inspect and investigate the most critical structures that would require immediate intervention." The investigations revealed that mining company Vale had an internal risk analysis system in place whereby the Brumadinho dam was already considered to be unstable. Here we have a list of 10, uh, tailings dams in 2018, before the collapse, and the dam one is here in the list. And also they, uh, estimated the amount of, uh, money in billions of dollars, and the risk as well. And according to this information, they, uh, take their decision to, uh, to not do anything to, to prevent the the tragedy. This ranking of dams is an acceptable, in an acceptable situation. It's a powerful tool for understanding the risk of at least 10 of Vale's dams. This information guided informed decision-making and the acceptance of prohibited risks in relation to various structures, including the dam in Brumadinho. TÜV SÜD, the certification company, and its Brazilian subsidiary were aware of the dam's risks. Mining operators in Brazil put certification companies under constant pressure. According to the Brazilian Public Prosecutors Office, Vale terminated contracts with external certifiers if they issued test results that went against the company's interests. Certification companies such as TÜV SÜD are therefore vested in presenting mining companies with results they expect. From February 2017 until the collapse of the dam in January 2019, there was a deepening of the business relationship between Vale and TÜV SÜD. During this period, TÜV SÜD carried out various analyses and studies on the dam, both as an internal consultant and as an external auditor. There was a clear conflict of interest. One on the one hand, TÜV SÜD analyzed the stability of the dam as an external auditor, from which independence is required. On the other hand, TÜV SÜD acted as Vale's internal consultants, providing technical advice for decision-making on the dam, with TÜV's technical team subject to direct guidance and interference from Vale on technical staff. TÜV certified as stable a dam whose safety coefficient was much lower than permitted. 1.3 is the coefficient globally adopted standard. This is also recognized and adopted by the two companies, Vale and TÜV SÜD. However, in this case of Brumadinho, Vale and TÜV SÜD have maliciously lowered the minimum acceptable coefficient from 1.3 to 1.05. The investigations found overwhelming evidence. Some equipment was captured, and some communications were intercepted. Much of the truth was revealed at the beginning of 2020. A Brazilian judge accepted the prosecutor's complaint and initiated criminal proceedings against 11 Vale employees, including its former CEO, and five TÜV SÜD employees. They are currently charged of murder, negligence, and environmental damage, as they allegedly knew there was a high risk that the dam could collapse. At the end of 2022, last year, the Brazilian Supreme Court ruled that the claim was being processed in the wrong jurisdiction. In general, 2023, the case restarted in the federal court in Belo Horizonte. The case is currently at the stage of notifying the defendants of the existence of the criminal proceedings. Criminal prosecution in Brazil does not satisfy the need to hold those responsible from other jurisdictions or other jurisdictions to account. That's why five Brazilian relatives of the victims and the organizations MISEREOR and the European Center for Constitutional and Human Rights filed a criminal complaint against TÜV SÜD and one of its employees in Munich, requesting investigations into the potential criminal behavior of German actors related to the dam failure. German companies are responsible for their direct business dealings, as well as the activities of their subsidiaries. The case falls under German jurisdiction because German citizens and a German company are presumed to be jointly responsible for the dam failure in Brazil. To date, the Munich Munich prosecutors have not concluded the investigations yet. In the fight to hold companies criminally responsible, institutions such as the police, public prosecutors, and the judiciary are essential. However, our experience has shown that this struggle can only be sustained by the vigilance of the people. The victims' relatives in in Brumadinho realized that they needed to take organized action. To this end, they founded the AVAB association, whose priorities are justice, criminal accountability, the preservation of memory, and the search for victims whose bodies have not been found. We have three people are still missing. Every month, the victims' families gather for a public event at the entrance to the city. The repeated shouts for criminal justice and a growing public interest in accountability inspired us to found the Observatory of the Criminal Proceedings on the Brumadinho Tragedy. This initiative documents criminal proceedings in Brazil and Germany. We monitor the performance of justice institutions and disseminate reliable information to the public, while archiving case materials to create a documentation center on the web. To conclude, the Brumadinho case is a clear example of why we cannot trust the good faith of companies, including certifiers, that's why we congratulate, uh, Yes To Life No To Mining on these initiatives. Here we have a print from, uh, Vale's official website when they say their values, active with, for example, act with integrity, we build relationships of trust and promote open and transparent communication. We are engaged with responsibility and have the discipline to generate results. Life matters most. Respect our planet and communities. And here, TÜV SÜD website: Our purpose: Enable progress by protecting people, the environment, and assets from technology-related risks, inspiring trust in a changing world. Thank you.
Thank you, Danilo, um, for sharing that, um, you know, everything that happened with the, the dam collapse and, and, you know, dealing with the aftermath. Um, so our final speaker before we move to the, uh, Q&A part is, um, Teresa Hoffman. Um, so now we're going to go from sort of the, um, on the ground experiences to talk about what this means for legislation. So Teresa is a policy advisor on raw materials at the organization Bread for the World, which is a German NGO based in Berlin, and she's going to talk about the Critical Raw Materials Act.
Thank you, Jessica, and thanks everyone. Um, first of all, thank you for the invitation and also for the input, um, of the other speakers. Um, yeah, it's quite tough to speak actually after like, um, what we heard now about all the emblematic cases and, yeah, reasons why certifications are problematic or even lead to an environmental and human catastrophes, such as like Brumadinho or Plaza, and, uh, can also even like, um, or even have like also the risk, um, to help companies to do greenwashing, and they like when they have, um, bad, um, business practices. Um, Jessica, could you share these slides, please?
Yes, sorry.
And, yeah, I, I will, um, I will now speak about like the actual, or the foreseen role of industry schemes or certification, certifications within, um, European legislations, um, more like concerning the implementation of human rights and environmental due diligence processes of companies, and how they want to like show, um, the sustainability of a project, as foreseen in the, in the Critical Raw Materials Act. So, um, I will basically more talk about, um, trends and tendencies we see in this kind of legislation. So we will not only speak about the Critical Raw Materials Act, be, and won't, um, like make a deep dive into the legislations themselves, but, um, give more like an overview, um, yeah, of the role of these, um, industry schemes and certifications.
Um, so maybe the next slide.
So within the last 10 years, we have seen like kind of a, a paradigm shift, um, from voluntary corporate responsibility to obligatory responsibility, um, where also the development of the legislation within the European Union are kind of, um, coming from or developing from. So in 2011, you probably know all know the United Nations Human Rights Council endorsed the UN Guiding Principles for Business and Human Rights, and I mention them because, um, they are kind of the first global standard for preventing and addressing the risk of adverse or negative impacts, um, of human rights linked to, um, concrete business activities and practices, and they are still like, um, internationally the internationally accepted framework for enhancing standards and practices regarding business, um, and human rights. And in order to implement those principles, um, countries were were, or are supposed to, um, adopt so-called, um, national action plans on business and human rights to implement, um, these guiding principles. And Germany, for example, did this, um, like published its National Action Plan in 2016, and, um, like the biggest critique from civil society was that it was again voluntary, um, and not like binding rules or a legislation, um, so, um, like binding rules for companies to comply with, um, human rights, um, and environmental standards along their whole, um, supply of value chains. And, um, as Danilo, um, mentioned, um, we have have like, um, a supply chain act in Germany since 2021, a due diligence legislation which obliges, um, companies, um, German companies to, um, yeah, to comply with human rights, environmental standards along the supply chains. And, um, since two, in 2022, the EU Commission published a proposal for this kind of legislation, um, on a European level, the Corporate Sustainability Due Diligence Directive, CS DD, and, um, the negotiations, um, for this, um, directive are still ongoing.
So why am I telling you this? Um, it's because like in, in the two most important international standards concerning businesses and human rights, like the UN GSPs I've mentioned before, and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, say that the responsibility of conducting due diligence is by the company itself and cannot be outsourced to third parties, such as audits, certifiers.
Next slide, please.
A, yeah, thank you. Um, so here I just copied like the part and the OECD guidelines where the, um, yeah, the international normative framework is actually quite clear and places the corporate obligation to achieve the objectives of due diligence with the companies, as I've said before. But they see kind of a, um, a role for multi-stakeholder initiatives, um, or, um, certifiers as kind of a contribution, a possible contribution in some part, um, of, um, the due diligence process. But in the end, um, the, uh, company has, um, the final responsibility.
Next slide, please.
Um, so I wanted to give you like, um, that seems like a lot of text, but I just wanted to give you like a short overview about, um, two regulations before I go to the Critical Raw Materials Act, um, because there we see quite well the tendencies, um, of, um, yeah, of the role of certifications. So we have, um, yeah, like, um, the Battery Regulation, which acts actually is a huge regulation, but one part in, um, is on due diligence, so, um, yeah, human rights, environmental due diligence along, along the battery supply chain. And, um, their, um, industry schemes like can support the implementation of due diligence obligations, and this is foreseen, but there's also like in the UNP and the EU guidelines an individual responsibility for the company, um, concerning their due diligence processes and the fulfillment of the, um, the criteria. And, um, as I've mentioned before, the CS DD, so the kind of due diligence legislation on EU level, as I've said, like it's still under negotiation. I copied in here like the part, the, um, the version, um, of the European Parliament, and they also foresee, um, actually a role, um, of, um, multi-stakeholder initiatives and industry schemes. Um, so they can be used to show, um, um, for some parts of the due diligence process, but they also foresee an individual responsibility of the company. And I, so it, I say it so clearly and so often because like in the Critical Raw Materials Act, until now, we have a different case. And, but we, what like, um, we can see here is a trend to, um, including, um, kind of role of industry schemes in this kind of legislations.
Um, next slide, please.
Um, so here, very briefly, I think, um, most of you know the Critical Raw Materials Act, but it was asked to like say briefly, um, what it actually contains, why we have so, it's basically a legislation, um, that the European Union, um, um, published, the European Commission, um, published in March this year, because the European Union has like a high dependence on the import of raw materials. Um, we had like, um, which is not very new, but we had like these supply chain disruptions through the COVID-19 pandemic, and especially the war in Ukraine, like, um, um, yeah, put a lot of pressure on the European Union to get to have like a global value chain stability, because we, our economies depend on, um, the import of raw materials, and there is this kind of global competition for critical raw materials such as lithium, cobalt, um, copper, etcetera. And, um, the European Union, kind of, yes, got like, feels under pressure and wanted also to have an answer to the US Inflation Reduction Act, which is like an, yeah, investment initiative of the United States, um, to foster green technology, etcetera. So, um, um, the goal of the European Union is to get more strategic autonomy and, um, also like, um, yeah, to get, um, to be less, um, dependent on, um, um, certain countries such as China, on this concerning the supply of, um, raw materials, um, needed for energy transition, military, digitization, etcetera. So, um, this in a nutshell, what the, um, the idea of the Critical Raw Materials Act is, basically, um, yeah, how, how the European Union can secure its supply of, um, raw materials. And, um, so the next slide, please.
Um, in order to reach the objectives of the Critical Raw Materials Act, such as more extraction also in the European Union, but, um, also in third countries, and more processing and more recycling capacity, um, concerning raw materials, um, um, yeah, as I said, they want to be less independent, and so they want to foster, um, the so-called strategic projects within the EU and in third countries, which can be projects of, as I said, extraction, processing, or recycling. And, um, um, and in order to be labeled, um, a strategic project, a project has to fulfill certain criteria. And here we come to the certification schemes.
Next slide, please.
Um, of course, like sustainability criteria. And, um, there we see like this, uh, different role as we see like in the other before-mentioned legislations, that, um, first of all, if a strategic project is, um, in a third country, so out of, um, not in the European Union, a, um, if economic operators or a company wants to, um, make a strategic project, it has to be certified. So there's kind of the obligation to get a certification. Um, and, um, what we see as well is that, as I mean, the whole act is still under negotiation, but, um, as it is placed, stated now, the sustainability criteria can be fulfilled or by complying with the UNP, the EU guidelines, or the upcoming due diligence legislation, or the company can attest compliance if they get certified. So, um, the way sustainability criteria are proposed at the moment, um, is kind of a negation of the UNP and the OECD guidelines because, as I've mentioned before, um, um, they can't be equivalent, due diligence practices and certification cannot be equivalent. So the responsibility in the end would have to be at the company, and we can't read this out of the text, um, of the Critical Raw Materials Act at the moment. To the contrary, and, um, so actually, like, already concluding, it feels as we would go backwards in the discussion because an adequate and comprehensive human rights, environmental due diligence process is kind of capable of consistently and effectively, um, identifying risks and preventing harm. And, um, so it's largely because of the inherent, like, deficiencies or limitations of corporate self-regulation that we've heard before, that the need for public regulation was finally recognized by policymakers. So it kind of feels ironic or illogical that now we get public regulation, and it might like all, all what we've achieved might be reverted like back to industry initiatives, initiatives as a means of implementation. And, um, this is where we see kind of a, um, a big, um, problem, and also a problem in understanding and, um, um, and understanding actually due diligence processes, um, according to UNP and OECD guidelines.
Um, so the last slide.
So for concluding, we see two, or I mentioned now two big trends, right? Like from voluntary to obligatory corporate responsibility in the European Union, and on the other hand, the big role of industry schemes and certification within these legislations. I think Jennifer mentioned this, um, at the beginning today, that, um, of course, like this was also due to a lot of lobby work of, um, of corporations and, um, business associations. And, um, I mean, you have all, um, told us about the big problematic of, um, of the certifications. And, yeah, there I just mentioned like two, uh, recommendations, which, um, are also, um, some conclusions of a very good, uh, study of Germanwatch, who, um, um, analyzed, um, industry schemes, and the raw material sector. And, um, so legal regulations must explicitly and clearly specify, specify that the responsibility for the implementation of human rights and environmental due diligence lies with the companies according to UNP and OECD, and that public authorities that inspect the adequate implementation of due diligence obligations must not rely solely on certifications. And this is, I think, where we, as civil society, and will also play an important role, and when it's about implementation of these acts and legislations, we will get, um, or we already have. And, um, just, um, as a last remark, um, uh, because I have been speaking a lot now about due diligence legislations, etcetera, just to say that they won't solve the complex, uh, problems, and, um, the, the corporate behavior, um, itself. So for this, and, and for this, we basically really need like, yeah, reduction targets, we need a proper, um, uh, circular economy, and, um, in the, in the Global North especially, and also like change our production and consumption models. But, yeah, now, um, I was asked to to speak about these processes, so thank you.
Thank you, Teresa. Thank you again to all of our panelists for, um, being here and sharing their expertise and experiences, um, today. So, um, now we're going to move into the Q&A, and I hope that, um, a lot of folks can still stick around for that, um, to get into some of these other questions of interest. Um, so we are going to start, um, actually, Guadalupe, do you want to do the first one?
Yes, I can do that. Thank you, Jessica. There's an important question from Indonesia that says, "Mining standards, private audits, and certification is a new big problem to environmental and poor communities who live in the rainforest until coastal and see, um, and who live in developing countries like my country, Indonesia. Um, now in Indonesia, a lot of nickel mining permits, um, is issued by the government. It is for electricity car and battery production, also for energy, um, sorry, this has moved somehow, also for energy, um, transition, transition. So because that companies who are based in North countries are getting rich, meanwhile, Sulawesi Island, the Maya, and the poor communities, especially women, are more poor." And this person concludes, "I support the No To Mining statement. So how to sign on to the statement?" The, the answer to this question would be at the end of the statement we shared at the beginning of the session, and we will share that again, um, both in Spanish and English. That's a contact email address, and that's, um, open for every community member, ER, or people wanting to to get in contact with the Yes To Life No To Mining, um, Network about this, to to write us a short email, and we will be in contact for sure. That's about the first question.
Great. And, um, sorry for moving that question over to the answered side in the middle of it. The next question, um, so I'll read it in English, and then we'll translate it because I think, um, our, um, panelists, um, from Argentina will have something to say about this. Um, so the question is, "What do you think of an indigenous and, uh, community-led assessment standard to prove where companies failed to respect consultation and consent, as well as environmental, um, protection?" Um, so we'll first ask Elizabeth and Veronica to respond, and then others.
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Indigenous, indigenous, indigenous.
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Um, Elizabeth says she finds that possibility could be very important, H, for the communities to have a, a tool to, H, be able to explain what is happening in the community. Just that. Would any of the other speakers like to comment on this?
I just have a very brief comment. Um, I, I think potentially one of the, the challenges in imagining standards is the idea that a standard would be global. And I think community-based standards and processes are necessary, but they need to respect the inherent laws, traditions, and, uh, decision-making processes of those, those peoples. And so it's, for me, a little bit complicated to imagine that it would be a single standard, but rather that there should be respect for communities' own processes of, of assessment, evaluation, uh, making decisions, and making those, those known. Um, it sort of just questioning whether not that would fit into the, the concept that we have of what what constitutes a standard.
Okay. Um, let's move on. There are a lot of questions now. So, um, there's a kind of a couple of them that are touching on similar themes, so I'm going to read them all out together, and then maybe the speakers can kind of respond to them in the way that they see fit. So one of them is, um, from, uh, John Hunter, um, who's saying, "Indeed, companies should be held individually responsible. However, how this is done is, if an independent third party is not involved, is kind of an open question. Um, we know we cannot trust the companies to be self-monitoring." A, sort of related question is, um, is, uh, Teresa, you mentioned that responsibility of implementing human rights and environmental due diligence lies in the hands of companies. Sounds like asking companies to self-regulate, and they certainly have no interest to do so, especially when it goes against their profits and interests. I wonder if governments, especially in producer countries, including the CSOs, as you mentioned, also have the responsibility to ensure or hold companies accountable for the implementation of, um, HRE. And a third, uh, similar version of this question is, do you see an option where governments conduct mine inspections on the basis of responsible mining standards that are maybe more demanding than current international law, such as Rym? Would it avoid the conflict of interest you mentioned with, um, private auditors?
I can maybe respond quickly, and then the others can, um, add, um, because the one was directly addressed to me. So, um, yeah, thanks a lot for the great questions, and, um, sorry if like it was really like narrowed down today, the, um, the presentation. So of course, this, it's not only a responsibility of of companies. There's a big, um, um, responsibility of of the governments and the states, of course, which is also one pillar of the UN Guiding Principles. So, um, um, and as, um, you said, like, um, companies should not self-regulate. This is what we wanted to, um, avoid. So, and also, if, if you do a proper due diligence process, you have to, you actually, um, have to engage with, um, local stakeholders, and, um, of course, there plays a crucial role, um, local civil society, um, so, um, you, you should of course also engage civil societies, um, society, um, and, um, communities. And, um, then there was the other question, um, about, um, company should be held individually responsible, however, how is done if an independent third party audit or third party is not involved, and, um, if a, and on the more demanding standard. So, um, I would actually ask if these, uh, certifications or certifiers or third parties are actually independent if they pay, they are paid by the company. So we have this conflict of interest, and we also have, I mean, this was shown very clearly by Danilo, and, um, um, the, the certifier, like wants to have, um, the goal of a certifier is like to certify, right? In the end, I think there's a big, um, yeah, conflict of interest, and also an asymmetry of power. I think this is a, um, a very important aspect which is, um, really difficult, um, to address in the situation if you have like this huge company, um, and, um, yeah, and a non-this way independent auditor, because he's paid by the, by the company. But maybe Danilo, you want to add something on this?
No, thanks. I'm just presenting an a concrete example, and for, for myself, and for ourselves here from from Brumadinho, it's really, um, incredible that this kind of thing, uh, happened, and it's incredible as well that this kind of system keeps, is maintained, you know? So no, no more comments on this. The, all, all of the things I, I said, I, uh, I brought from the criminal case. There are, uh, some findings from the investigations or quotes from the prosecutors' documents. So, from my perspective, this is, uh, something that, uh, we cannot accept, and it's unforgivable.
If I can kind of rephrase, I think the, the theme of these questions is, how do we actually hold companies responsible? Um, you know, clearly there's a lot of issues with this, uh, private third-party, um, version of it. Um, and I think people are are wondering, uh, how to, how to, um, enact that responsibility. I, I think I, I just, I wanted to respond to one of the questions that was raised in the, the group of questions. I think Teresa responded well to the question of whether or not certifiers can be considered independent to start with. Um, but on the question about whether governments were to take over mine inspections based on an Rym standard, I think there's a bigger question there. I mean, we are saying that governments should take responsibility, uh, to protect people and the environment. And, um, but I think incorporating these standards, uh, is not, is not such an easy question when I think we're raising a bigger question about should there be more mining at all? These debates are fervent debates in many countries. Um, there's been months of protests on the streets in Panama recently.
Not calling for more responsible mining, but calling for a stop, a halt to mining, and no more mining. Um, so I think there's a bigger question about some of the presumptions that have been built into the standards to start with, that have not raised the questions that many communities and peoples are trying to get at, which is about whether or not this is an inevitable and necessary activity to be perpetuated, especially in the context of the ecological and global crisis that we're facing, and especially in the context of the perpetual violence and devastation that communities have been subject to.
So, so I think there is a question about who, at the end of the day, is responsible for implementing these laws and regulations. But there's a bigger question about how are we actually framing the question about mining and extractivism to start with, and how these certification systems push all that aside and help to further legitimize and perpetuate mining harms by legitimizing the industry itself and providing them with a very effective tool with which to do that.
I just wanted to add that as a comment. I don't think it answers the bigger question that you just framed, Jessica, about how to address impunity. And I think there are long struggles about that. When we could talk about the UNGPs as well, and how the binding nature of those UNGPs was taken off the table in 2011 in the final decision that was made, which was a part of the corporate capture and the corporate pressure that's put on all facets of the system and governments, as well as standard-setting bodies and certifiers, at the end of the day.
Thank you. There are a couple of questions about the Badiño case specifically. If you can add a little bit about that. And so one of them is asking [Music]. Um, where did it go? Um, okay, sorry, I cannot find that question right now. I'm going to move on to a different question, which I think gets at what a lot of the speakers are emphasizing here. So this question says, at the end of the day, who actually benefits from mining standards and certifications? So, open to any of the panelists who would like to respond to that.
Well, maybe not probably not the communities. I like the question. Yeah, it's like actually at the core, right? So, of course, this is a big business, and as we see, like what I mentioned, that it is incorporated now and further and further in legislations. So, um, yes, it's a big problem because it is, in the end, it is private standards, and, um, it's in the end companies. And what Jen said, I think was really important, that it also takes the risk to get away from the actual core problems we have, which is the consumption and production model we have, especially in the Global North, and kind of be the risk to, yeah, do greenwashing and to label mining activities as green or ecological or whatever you want to call them. But, um, yeah, goes away from the core questions where what we actually should address.
Thank you, Tara. One of the, I think we can fit a few more questions in before the end of the webinar. The next one is asking, basically, are there any examples of companies who have displayed an acceptable due diligence process? I wonder if this could inform ideal standards where human environmental rights are upheld. Silence. Could we also maybe I can just answer because we have like this German Supply Chain Act since 2021. It is ratified, and it's the first year that companies have to do the reporting. And of course, we have a lot of debates about the roles of multi-stakeholder initiative certifications, etc., in the implementation of this act. And so we still don't have like the reports of the companies that will still take like one or two years, I think, that we can check if there are like kind of acceptable due diligence processes. But still, I think it goes, yeah, in the wrong direction because then it is like the ideal standards for human environmental rights are upheld. Yeah, I would be happy if we get this. But they still think that there's a lot to do because you have to engage like a lot of stakeholders if you want to do it properly, and it's not going from one day to the other. So, yes, if there are any examples of the others here in the room of acceptable due diligence processes, let me know. We get that asked quite often.
In the first place, Veronica will express about what is happening with Lent and the lack of water in the region, and she is telling on the website of Opsal there is information about this, and also the contact email for more on the case. So Veronica basically says that about the appropriate standards of the question that has been raised, there are standards and legislation. There are existing legislation, but this is not being respected. So, for example, in Catamarca, in the region where she is speaking from, water laws date back to 1974. So there is an urgent need for more regulation that is taken into account what the water situation is today, so actualized legislation. And this is her point is this is not about regulation or norms, but about the community's right to water. So, so this is about the right of the communities not to accept these mining projects because they have the right to their own ways of life in the community, their traditional or whatever ways of lives they have currently.
There's one attendee who is interested in what the speakers think about the pending legally binding instrument on transnationals and human rights. Do the speakers have some comments on that? The UN treaty on business and human rights, or which one is which binding instrument is it? It was not specified, but I am assuming that it is that one. Well, I can just say briefly that I'm not working on this. We are spread for the world. We support the process, and we ask the European Union to get a negotiating mandate. They have been quite calm about this whole process until now, and we push that they should engage in the negotiations on this UN treaty. This I can't say more about it. I don't know if the others are working on this.
There's another sort of comment question here that says, common discourse typically separates legal mining from illegal mining. However, most mining projects that have government permits are arguably illegal. In Latin America, there is vast jurisprudence from the Inter-American Court of Human Rights affirming that governments need to conduct prior environmental and social assessments, as well as obtain FPIC, free, prior, and informed consent, before granting concessions. The problem seems to be that the governments are not adhering to their obligations under the American Convention. Maybe there is a need to change the discourse and refer to all mining projects as illegal unless they meet the prior consent requirements, sort of posed as a question.
Maybe just quickly on that. I mean, I share the reflection and have heard even some that would talk about mining as a criminal enterprise, not just illegal, given those frequent irregularities, lack of respect fundamentally for community self-determination and right to say no, to start with. But then also the questions that are also happening in different countries around whether or not there should be any more mining activity at all, which would depend less on a mine-by-mine assessment and more on whether or not this is a desirable activity within different jurisdictions. And I think in all of these cases, and in terms of the comment about governments not abiding by their obligations, I think it's also important to shed a light on the heavy hand of industry, Northern like rich governments, and other institutions that are also putting pressure on those governments to not follow through on their obligations. There are examples of that. And I think the way that free trade agreements and transnational corporations' ability to sue governments when they make decisions that could affect their future income, all of these are tools, very powerful tools, that foreign governments and companies have to wield over governments that may actually be trying to or be seeking to abide by their obligations or be ordered by their own courts to do so, and certainly be demanded by their own people to do so.
So I think there's, you know, there's aspects of the global system that come into play and that aren't just the responsibility of a local or national government, but are actually ways that our governments in the Global North are also behaving, in the way that transnational corporations, much of whom are domiciled in the Global North, are using these absolutely unjust tools to their favor. So I think this goes back to, you know, voluntary mechanisms don't all get at those structural issues that are part and parcel of why we don't have effective binding mechanisms to hold corporations to account today. And why, I mean, and I haven't been part of the binding treaty process, but I understand that it's come under significant pressure from some of those same actors, and is part of why it doesn't have a clear timeline, even if the aspirations are laudable and important, but are definitely part of what seems to be holding up that that process.
And thank you. We are at time now. So I just want to thank all of our panelists again for being here and for speaking with us. Thank you for everybody who attended to listen and join in the conversation. And there were a couple of questions about the recordings and documents, so we will send the recording after this, and you know, encourage you to share it with folks that you think would be interested, so that's all. Thanks again for coming, and see you next time. Thanks a lot for the invitation and for listening. Thank you. Thank you. Thank you. Bye bye.