Local Communities: Enabling Dialogue, Respecting Rights and Sharing Benefits Sam Szoke-Burke

Structure  Communities and CDAs  Seven step process to CDAs  Community issues in general  Innovations in human rights due diligence (impact assessment, monitoring, and resolution of grievances). 2

Takeaways  Communities need to be in the driver’s seat. CDAs must not be imposed on communities.  CDAs must be implementable and enforceable.  CDAs must be accompanied by good faith efforts to avoid human rights violations.  Human rights due diligence is not one-size- fits-all. Different innovations can be employed in different contexts. 3

Introduction to CDAs What is a Community Development Agreement (CDA)? 4

Introduction to CDAs Why enter into a CDA? 5

Communities Who are the communities who might enter into a CDA? 6

Communities What makes a community indigenous? 7

Aren’t all Africans indigenous? 8

Free, Prior and Informed Consent (FPIC)  Free  Prior  Informed  Consent  Focus on meaningful consultation process, not just agreement 9

Establish a pre-negotiation agreement / MOU Identify potential parties to the CDA Ensure community agency and identification of priorities The CDA Process Pre-negotiation Source: CCSI, Emerging Practices in Community Development Agreements, 2016

Negotiate which benefits will be shared Create strong, governance arrangements to ensure compliance Include plans for mine closure & legacy issues Ensure transparency of the CDA The CDA Process Negotiation and Implementation Source: CCSI, Emerging Practices in Community Development Agreements, 2016

Establish a pre-negotiation agreement / MOU Identify potential parties to the CDA Ensure community agency and identification of priorities The CDA Process

1. Identify potential parties How to identify which communities will be party to the CDA? 13

1. Define the parties 14

1. Define the parties Who from the community should the company deal with when setting up a dialog about a possible CDA? 15

Understanding community protocols 16

Community Protocol: North- Western Argentina 17

1. Define the parties What happens if the community is divided about whether or not they want the project or want to enter into a CDA? 18

Establish a pre- negotiation agreement / MOU Identify potential parties to the CDA Ensure community agency and identification of priorities The CDA Process Pre-negotiation

2. Establish pre-negotiation agreement / MOU What should parties agree on, before CDA negotiations begin? 20

Establish a pre-negotiation agreement / MOU Identify potential parties to the CDA Ensure community agency and identification of priorities The CDA Process Pre-negotiation

3. Ensuring community agency and identification of priorities  Information  Capacity  Access to expert assistance  Time  Remember: FPIC 22

Negotiate which benefits will be shared Create strong, governance arrangements to ensure compliance Include plans for mine closure & legacy issues Ensure transparency of the CDA The CDA Process Negotiation and Implementation

4. Negotiate terms: Accessibility 24

4. Negotiate terms (benefit sharing)  Substance: What types of benefit sharing could be included in a CDA?  How should they be implemented? 25

4. Negotiate terms: avoiding misuse of funds 26

4. Negotiate terms: Case study 27

4. Negotiate terms: Case study  Structures:  Community Committees submit proposals.  Social Responsibility Forum (55 members from different groups) decides what is funded by facilitated consensus.  Community Development Fund provides funding and implements the project.  Benefits paid to Community Development Fund:  $1 USD per ounce of gold sold  1% of Newmont’s net pre-tax income  1% of gains in selling assets of $100,000 USD or more. 28

An aside: Ahafo  Grievances and allegations:  Environmental damage, including 2009 cyanide spill  Eviction / destruction of property without adequate compensation  Deaths and injuries relating to mine operations and inadequate remedies  Violence towards, and arrests of, persons organizing meetings to discuss the mine  Resulting distrust  Communities in another planned Newmont mine area protest 29

Negotiate fiscal & non-fiscal benefit sharing Create strong, governance arrangements to ensure compliance Include plans for mine closure & legacy issues Ensure transparency of the CDA The CDA Process Negotiation and Implementation

Negotiate fiscal & non-fiscal benefit sharing Create strong, governance arrangements to ensure compliance Include plans for mine closure & legacy issues Ensure transparency of the CDA The CDA Process Negotiation and Implementation

Ensure transparency of the CDA contract-transparency-is-becoming-norm/

Negotiate fiscal & non-fiscal benefit sharing Create strong, governance arrangements to ensure compliance Include plans for mine closure & legacy issues Enhance transparency of the CDA The CDA Process Negotiation and Implementation

7. Governance and Compliance What arrangements can be included in the CDA to monitor and ensure compliance with the CDA? 34

Learn more about CDAs  CCSI is building a CDA repository!  development-agreements-frameworks-and-tools/ development-agreements-frameworks-and-tools/  Briefing note: Emerging Practices in Community Development Agreements, CCSI,

Innovations in human rights due diligence, monitoring and remedy  Multi-stakeholder HRIAs  Community Environmental Monitoring Program: Eagle Mine Michigan  Community-led Grievance Mechanisms 36

Multi-stakeholder HRIAs  Composition of assessment team  Involvement of state actors  Funding sources  Methodology  Timing 37

Community Environmental Monitoring Program: Eagle Mine Michigan  Mine pays $300,000 annually.  Environmental NGO (SWP) carries out environmental monitoring and publishes all data.  Community foundation administers funds.  Oversight board made up of community members.  Community scorecards for broader community. 38

Community-led Grievance Mechanisms  Community decides on:  Scope  Potential remedies available  Process  Implementation  Capacity building  Company needs to agree to be bound  Government involvement? 39

Takeaways  Communities need to be in the driver’s seat. CDAs must not be imposed on communities.  CDAs must be implementable and enforceable.  CDAs must be accompanied by good faith efforts to avoid human rights violations.  Human rights due diligence is not one-size- fits-all. Different innovations can be employed in different contexts. 40

Thank you 41 Sam Szoke-Burke