Community Development Agreement Model Regulations and Example Guidelines Table of Contents 1. Background ……………………………………………………………… 1 2. Phase 1. Technical Development of Model CDA Regulations ………….…. 2 3. Phase 2. Stakeholder Engagement ………………………………………. 3 Annex 1. Annotated Community Development Agreement Model Regulations …… 5 Annex 2. Community Development Agreement Model Regulations ………… 32 Annex 3. Example of Community Development Agreement Guidelines …….. 58 Annex 4. Phase 1 Consultation (Meetings and Persons Met) ………………… 75 Annex 5. Technical Review Workshop Attendees …………………………… 77 Annex 6. Consultant’s Terms of Reference ………………………………………. 78 Annex 7. About the Consultant …………………………………………………… 81 Abbreviations CDA Community Development Agreement COCPO Oil, Gas and Mining Policy and Operations Unit (World Bank) ICMM International Council on Mining and Metals IFC International Finance Corporation WBG World Bank Group
the qualified community, the mining right holder may notify the [Minister, Ministry, Director of Mines] requesting clarification, and the [Minister, Ministry, Director of Mines] shall notify the mining right holder, specifying which community is the qualified community. Alternative 4. “qualified community” means a community of persons residing within [text (number)] kilometers of any boundary defining the mining right area. “ratified community development agreement” means a community development agreement that has been approved by the respective community according to such process and in such manner as is customary for such community to make decisions on matters affecting the community as a whole. “sub-community” means a group of persons classified as a sub-community for the purposes of these regulations by the [Minister, Ministry, Director of Mines], in consultation with the [Local Authority], because their number is too small to comprise a qualified community, but who are for the purposes of these regulations deemed part of a qualified community. General obligation to promote community The holder of a mining right shall assist in the development of communities affected by its operations to promote sustainable development, enhance the general welfare and the quality of life of the inhabitants, and shall recognize and respect the rights, customs, traditions and religion of local communities. Where community agreement is required – Alternative 1. The holder of a mining right is required to have and implement community development agreements with all qualified communities if its approved mining operation will or does exceed any of the following limits: in the case of extraction of minerals from primarily alluvial deposits, where annual throughput is more than [x cubic metres] per year; or in the case of underground mining operations, where annual combined run-of-mine ore and waste production is more than [x tonnes] per year (waste material not exiting mine mouth to be excluded); or in the case of open-cast mining operations extracting minerals from primarily non-alluvial deposits, where annual combined run-of-mine ore, rock, waste and
Community agreements and periodic reports available to the public - All community development agreements, community development agreement [ semi-annual ] reports and community development annual expenditure reports (including all required attachments) submitted by past and present holders of a mining right in furtherance of these regulations shall be open to free inspection by members of the public at the [Mining Cadastre Office, Department of Mines, Ministry] during normal Government office hours. On payment of the fee prescribed in Schedule 1 of these regulations, any member of the Public shall be entitled to obtain a copy from the [Mining Cadastre Office, Department of Mines, Ministry] of any community development agreement, community development agreement [ semi-annual ] report, or community development annual expenditure report submitted by a past or present holder of a mining right. A community development agreement, community development agreement annual reports and community development annual expenditure reports (including all required attachments) submitted by the holder of a mining right in furtherance of these regulations shall be open to free inspection by any member of the qualified community party to such agreement at the office of the mining right holder located closest to that community during normal office hours. Transfer When a mining right is transferred to another party, the transferee shall be deemed to assume all rights and obligations of the transferor under any community development agreement relating to the mining right. Penalties A person who contravenes regulation 18(1) is guilty of an offence and is liable on summary conviction to a fine not exceeding [X]. –Section deleted Regulations to apply to preexisting mining rights The holder of a mining right that currently is in force but which was granted prior to the adoption of these regulations is subject to these regulations and shall be in compliance with them no later than two calendar years from the publication date of these regulations. Regulations to prevail if inconsistent with mining agreement Should at any time any inconsistency occur between a provision in these regulations and terms or conditions in a mining agreement approved by the Government as an act of law, these regulations shall prevail unless such agreement came into force after these regulations and it specifically states that the mining agreement provisions shall prevail.
Object The objects of these guidelines are: to enhance the sustainable social, cultural and economic well-being of communities impacted by mining operations; to define when community development agreements may be useful and to provide a suggested framework for such agreements; to promote accountability and transparency in mining related community development. Interpretation In these guidelines, except where otherwise expressly provided – “community development agreement” means a community development agreement negotiated between the holder of a mining right and a partner community; “[Local Authority]” means [insert appropriate government entity]; “[Mining Act/Code Minier]” means [insert citation here for the mining act/code minier]; “mining right” means [name of the authorization that grants large scale mining rights under the mining law/code minier such as large scale mining licence, mining lease, mining concession, …]; “partner community” means a community, in proximity to an area covered by a mining right, that has the potential to be significantly negatively or positively impacted by mining operations; “ratified community development agreement” means a community development agreement that has been approved by the respective community according to such process and in such manner as is customary for such community to make decisions on matters affecting the community as a whole. “sub-community” means a group of persons classified as a for the purposes of these guidelines because their number is too small to comprise a partner community, but are part of a partner community. Mining right holder may assist in development of It is recommended that a mining right holder assist in the development of communities affected by its operations to promote
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Communities often expect that when an extractive project opens, the community will receive benefits. Traditionally, such benefits were received in two primary forms: paternalistic contributions, monetary and otherwise, from the company extracting the resource as part of its social corporate responsibility program; investment from or sharing in fiscal tax revenues through the government’s general budgeting process, or more recently in some countries, through an earmarked portion of taxes statutorily mandated for affected communities. Both of these forms of community development assistance have their merits and demerits and are not mutually exclusive. Another possible modality for community development assistance is some form of community development agreement. Some companies have experimented with such “contracts with the community” as part of their social corporate responsibility risk management programs. Presently, though not always, these agreements tend to be non-legal in nature and are viewed by companies as a voluntary means by which to help manage community expectations. Examples of extractive of projects being blocked or impeded by local communities are on the rise. Aside from an awareness that impeded projects may have a detrimental impact on fiscal revenues, governments are also interested in seeing how companies can further local level development. Community development agreements today tend to be voluntary and binding (soft law). However, that need not be the case, and requirements and general content of such agreements can be mandated by law. In nations where extractive projects operate under ad hoc negotiated agreements, requirements for integral or independent community development agreements can also be stipulated. Objectives and deliverables This assignment will build on previously completed work, including the drafting of the Community Development Agreement model regulation. The objective of this assignment is to consult broadly and gain feedback on this DRAFT from civil society and private firms, incorporate this feedback into the draft regulations and guidelines. Deliverables: Draft Community Development Agreement regulations and guidelines. Scope of Work Community Development Model Regulation Review, , October 1, 2009. The Consultant will prepare material and a presentation, and participate in the preparation of a one-day workshop/review meeting with representatives from the World Bank, civil society, and private mining firms. The meetings will be arranged by the Oil, Gas and Mining Policy Division, COCPO. Preparation 1 day, meeting with travel 3 days, follow-up work 1 day. Total 5 days. Deliverable