Published on:

How Mining Companies Can Achieve an Effective “Social License to Operate” in Latin America – Part 2

Effective Social License to Operate: Off-site preparation and on-site investigation

Second in a series of articles about mining companies achieving an effective social license to operate

by Jordi Ventura

See Part 1: What is a Social License to Operate (SLO) and how do mining companies achieve an SLO?

See Part 3: How Mining Companies Can Achieve an Effective License to Operate in South America – Who should do the diagnosis?

 

An effective diagnosis for a Social License to Operate (SLO) will include off-site preparatory work as well as on-site investigation.

Off-site preparatory work

In order to ensure a quick, successful and cost-effective investigation, the SLO diagnosis initially involves preparatory work that takes place away from the proposed mining project and prior to any significant presence of the mining company on the ground. This preparatory work consists of, at a minimum, the following:

  • meeting with relevant members of the company’s senior management team to:
    • ascertain what, if any, endeavors have already been conducted by the company or additional companies (mining or otherwise) concerning the SLO and related matters, and obtain any copies of all documentation;
    • discuss any particular areas of concern that the company may have; and
    • agree to an overall game plan that includes expected deliverables, deadlines and costs.

It is imperative for the company to grant the diagnosis team unrestricted access (pursuant to an appropriate non-disclosure, confidentiality, limited engagement or similar agreement) to review the company’s documents, policies and procedures, interview company personnel, and engage in similar activities that will maximize the diagnosis team’s investigative efforts and knowledge base.

  • The diagnosis team will need to determine the host country national legislation and customs that exist and are related to:
    • land access and acquisition;
    • community consultation (especially when dealing with indigenous peoples);
    • cultural heritage; and
    • local, regional and national development.
  • The diagnosis team will also need to:
    • identify any gaps between national legislation and international standards to ensure that all appropriate procedures will be followed in connection with the diagnosis team’s investigative efforts;
    • gather relevant historical, political and socio-cultural information;
    • determine whether the proposed mining project is located on or in the vicinity of lands of indigenous peoples and may impact these lands
      • if this is the case, separate preparation must be made, and a possible time-consuming process must be anticipated, in order to obtain Free, Prior and Informed Consent (FPIC);
    • identify all stakeholders – whether formally or informally involved – that are external to the proposed mining project, including governmental regulatory agencies, global non-government organizations (NGOs), international financial institutions and international mining industry associations;
    • develop a well-thought-out procedure to provide consistent information to landowners and land users in order to obtain permission to conduct exploration and other preliminary on-site activities;
    • ascertain the identities of key community leaders;
    • select and hire one or more respected, well connected and trusted facilitators to arrange necessary interactive and informational on-site meetings
      • it is usually a good idea to have the facilitator(s) also serve as a liaison between the mining company and various community factions, possibly including local law enforcement or a military presence, and otherwise act as the diagnosis team’s in-country representative.

On-site investigative work

Once the off-site preparatory work has been completed, the diagnosis team will relocate to the proposed site of the mining project to conduct, at a minimum, the following activities:

  • meet with the hired facilitator(s) to obtain any insights concerning the local community’s feelings towards mining in general and the mining company in particular, and whether there are any important issues that the diagnosis team should be aware of and/or whether in-country plans need to be altered
    • there is one certainty when conducting mining activities of any sort, including work associated with the SLO diagnosis: one should always anticipate changing circumstances and have contingency plans in place;
  • schedule (with enough advance notice) and hold one or more interactive community meetings, where interested stakeholders are able to learn about the company’s plans, exchange ideas and express their opinions
    • if permission is granted, the meetings should be video recorded, and one or more documents should be prepared memorializing the meetings and obtaining the names and signatures of all those in attendance;
  • identify all stakeholders – whether formally or informally involved – that are immediately adjacent to or will be directly affected by the proposed mining project and assess and/or determine:
    • their different needs, interests, values and aspirations;
    • the local history of conflict or human rights violations;
    • problems encountered by current or previous exploration projects;
    • unstable or contested land tenure arrangements;
    • intra-community divisions and inter-community conflicts and alliances;
    • access to water and other vital resources;
  • physically determine the presence of indigenous peoples or vulnerable groups;
  • prepare an initial community profile (to be completed in the follow-up to an SLO diagnosis, which is the topic of our next article), which provides enough information to initiate engagement and to begin mapping the risks or impacts that the local community and/or stakeholders may face from the development of a mining project;
  • verify the existence of any and all documents and/or agreements signed among community members, government officials, NGOs or other mining companies and, if permission is granted, obtaining copies;
  • verify the existence of any verbal agreements or understanding and memorializing their substance;
  • meticulously document all significant activities that take place during the on-site investigative work;
  • if permission is granted, take as many pictures and video recordings as possible;
  • avoid making promises or commitments so as to not raise expectations
    • failure to fulfill commitments will complicate and very possibly terminate a project.

The qualifications of those conducting the investigation and the follow-up to the results of the investigation are key to gaining an effective social license to operate. We will address those issues in our next article.

Coming next: The Effective Social License to Operate – Effective Diagnosis for Social License to Operate: Who should perform the diagnosis? What to do after the investigation?

See Part 1: What is a Social License to Operate (SLO) and how do mining companies achieve an SLO?

See Part 3: How Mining Companies Can Achieve an Effective Social License to Operate in Latin America – Who should do the diagnosis?

 

A full discussion of issues related to a Social License to Operate can be found in the book Minerals and Mining: The Life of a Mining Project. Jordi Ventura is the author of its chapter titled “The life of a mining project: Effective diagnosis of a social license to operate.”

Jordi Ventura is a member of JMBM’s Natural Resources and Mining Group. His practice focuses on the representation of mining companies in Latin America, where he has conducted effective mining legal diagnoses and effective diagnoses of social licenses to operate. He represents the mining industry in mining leases, joint venture and operating agreements, option agreements, exploration and development agreements, and mine operating contracts. He has been the lead attorney in mergers and acquisitions, divestitures of business entities and other land transactions. Jordi Ventura is licensed to practice in Utah and Colorado; he is not licensed in California. Contact Jordi at JVentura@jmbm.com or +1 415.984.9689.