Byen Konte, Mal Kalkile? Dwa Moun ak Risk Anviwònman nan Min Ò an Ayiti

Byen Konte, Mal Kalkile? Human Rights and Environmental Risks of Gold Mining in Haiti H aiti Justice Initiative University of California Hastings College of the Law About the Authors The Global Justice Clinic The Global Justice Clinic (GJC) at N ew Y ork U niversity School of Law 1 provides high - quality, professional human rights lawyering services to individual clients and nongovernmental and intergovernmental human rights organizations, partnering with groups based in the United States and abroad. Working as legal advisers, counsel, co - counsel, or advocacy partners, GJC students work side by side with human rights activists from around the world. S ince its founding , GJC has worked on human rights issues in Haiti. The Haiti Justice Initiative The Haiti Justice Initiative is an umbrella organiza tion for a variety of ongoing projects at UC Hastings, including the Hastings - to - Haiti Partnership, a six teen - year partnership with the É cole Sup é rieure Catholique de Droit de J é r é mie that includes educational exchanges and collaborative work toward creati on of a legal services clinic in J é r é mie; legal assistance, community trainings, and related work to address gender - based violence in Haiti conducted by the Center for Gender & Refugee Studies ; and oth er student and faculty projects, including this R eport on gold mining in Haiti. Byen Konte, Mal Kalkile? Human Rights and Environmental Risks of Gold Mining in Haiti © December 2015, Global Justice Clinic & Haiti Justice Initiative 1 Communications from NYU law clinics do not purport to represent the school’s views, if any. Table of Contents Acknowledgements i E xecutive S ummary 1 Methodology 9 Recommendations 18 Chapter I: Haiti’s Gold, Past and Present 23 I. Historical, Political, and Environmental Context 24 A. Brief Historical Context 24 1. The Nation’s Founding 24 2. Nineteenth Century: Freedom and Exclusion 24 3. Twentieth Century: Occupation and Dictatorship 25 4. Late Twentieth Century Through Present Day: Crisis and Intervention 25 5. Politics in 2015 27 B. Communities at Risk 33 1. Predisposed to Natural Disaster, Unable to Respond Effectively 33 2. Human Factors 33 II. Haiti’s Gold: Conquest and Controversy 34 A. History of Gold Mining on Hispa niola 34 B. Modern Gold Mining in Haiti 36 1. Gold Mining in the Late Twentieth Century 37 2. Gold Mining in the Early 2000s 38 3. Disagreement over Exploitation Permits 39 C. Communities Affected By Mining Activity 42 1. The Affected Communities: Moun Andeyò 42 2. Communities’ Experiences: Exclusion and a Lack of Access to Information 45 Chapter II: The Modern Gold Mine and Mining in Haiti Today 58 A. The Geology of Gold 59 B. Gold Exploration 61 1. Phases of Exploration 61 2. Permit Holdings and Exploration Activities in Haiti to Date 61 a. VCS Mining LLC 65 b. Majescor - SOMINE 65 c. Newmont - Eurasian Joint Venture and Eurasian Minerals 66 C. The Extraction of Gold 69 D. Gold Processing and Refining 71 Chapter III: The E nvironmental Risks of Mining 81 A. Environmental Risks of Mineral Exploration 81 1. Test Drilling and Related Construction 81 2. Risks to Soil 82 3. Risks to Water Resources 82 4. The Debated Environmental Impacts of Mineral Exploration in Haiti 83 5. Communities’ Experiences with Majescor - SOMINE 83 6. Communities’ Experiences with Newmont - Eurasian 85 a. Grand Bois 85 b. La Montagne 86 B. Environmental Risks of Mine Construction and Exploitation 87 1. Dust 87 2. Water Use and Water Contamination 88 C. Mineral Processing and the Environment: Cyanide, Smelting, and Pollution of Water and Air 89 1. Transport 89 2. Cyanide Processing 90 3. Smelting 95 4. Heavy Metals and Metal - Like Elements 95 D. Mine Closure and the Envi ronment: Surface Rehabilitation and the Persist ence of Water Pollution and Threats to Public Health 100 E. Haiti’s Capacity to Manage the Environmental Risks of Mining 104 F. Conclusion 105 Chapter IV: The Economics of Gold Mining for Haiti 120 A. The Economic Drivers of Mining 120 B. The F inancial Terms of Mining 123 1. Taxes and Royalties: A Comparative Analysis of Fiscal Regimes for Mining 123 a. Taxes 124 b. Royalties 124 2. Haiti’s Fiscal Policy Options 126 C. Haiti’s Financial Stake in Mining 130 1. Tax Limi tations and Uncertainties 131 2. Potential Exemptions from Corporate Income Taxes under Haiti’s Investment Code 132 3. Corporate Income Taxes: The Risks of Transfer Pricing 134 4. Fiscal Sustainability 136 5. Fiscal Transparency 137 D. Potential Financial Benefits of Mining: A Caut ionary Hypothetical 138 E. Conclusion 140 Chapter V: The Legal Framework for Mining in Haiti 153 A. T he Haitian Constitution 153 B. T he Mining Decree of 1976 155 1. Mining P ermits 156 2. Financial R equirements 157 3. Environmental P rotection , L and R ights , and C ommunity I nterests 158 C. Refor m of the Legal Framework 160 D. Governance and th e Rule of Law 162 E. The August 2014 Draft Mining Law 164 1. Tra nsparency and D isclosure 165 2. Environme ntal R eview and O versight 166 3. Particular E nvironmental S tandards and P rotections 168 a. A pplicable environment al law 169 b. Reserve areas 169 c. Deforestation 169 d. Buffer zones 170 e. Water 170 4. Permitting System 170 5. Financial Requirements 171 a. Royalty rates 172 b. Tax avoidance safeguards 172 c. Surface use fees 174 d. Fiscal stabilization 174 e. Remediation 175 6. Land U se, C om pensation , and D ispute R esolution 176 7. Commun ity D evelopment P rotocols 178 8. Labor and L ocal C ontent P rovisions 179 9. Model Mining Convention (“ Convention Minière Type ”) 180 Chapter VI: Human Rights and Gold Mining in Haiti 199 A. Introduction: Rights Affected by Mining 199 B. Rights Related to Participation and Deliberation 199 1. Relevant International Law: Rights Related to Participation and Deliberation 199 2. The Experience of Mining - Affected Communities: Rights Related to Pa rticipation and Deliberation 200 a. Overview 200 b. Residents of Patricko and Roche Plat demand access to information 203 3. Haitian Advocates Testify about Lack of Access to Information 204 C. Social and Environmental Rights 206 1. Relevant International Law: Social and Environmental Rights 206 2. The Experience of Mining - Affected Communities: Social and Environmental Rights 207 a. Overview 207 b. The experience of mining - affected communities: land access agreements 211 c. Case study: land access agreements in La Montagne 212 i. Conclusion of A greements 217 ii. Signing by T hird P arties 220 iii. R efusal 221 iv. Absenc e of a Grievance Mechanism 221 v. Case S tudy Conclusion 222 D. Who is Responsible? Duties Corresponding to Righ ts Affected by Mining 222 1. Introduction 222 2. Human Rights Obligations 223 3. The Responsibility to Respect, Protect, and Fulfill 223 4. Obligat ions of the Haitian State 225 5. Obl igations of Other States 226 a. States’ extraterritorial obligations under internati onal human rights law 226 b. States’ obligations when acting As members of the international community 226 c. Obligations of mining companies’ home states 227 6. Obligations of IFIs 227 7. Responsibilities of m ining companies 230 a. I nstitutional commitment s 232 i. Relevant Pol icies and Standards at IFIs 232 ii. Company Commitments 233 E. Conclusion 234 Appendices: Land Access Agreement Used by Newmont - Eurasian in Haiti 258 Appe ndix 1: Land Access Agreement 258 Appendix 2: Transcription of Creole Agreement 260 Appendix 3: Translation of Creole Agreement 262 List of Boxes Box 1 - 1: United Nation s Peacekeeping Force in Haiti 26 Box 1 - 2: Relevant Haitian Government Actors 29 Box 1 - 3: Bauxite and Copper Mining in Haiti in the Twentieth Century 35 Box 1 - 4: Mining Permits Under Haitian Law 37 Box 1 - 5: International Financial Institution Support 40 Box 1 - 6: The Kolektif Jistis Min (KJM) 44 Box 2 - 1: Artisanal Mining in Haiti: Lakwèv 59 Box 2 - 2 : Gold and Copper Permits in Haiti 62 Box 3 - 1: Green(er) Mining 96 Box 4 - 1: Comparison of Ad Valorem Mineral Royalty Rates in Select Countries 125 Box 4 - 2: Questioning the Haitian Government’s Capacity and Will to Collect Taxes 129 Box 5 - 1: Inspection Panel Complaint 139 Box 5 - 2: Labor Rights in Haiti and the Need for S trong Worker Protectio ns in the Mining Sector 1 82 Box 6 - 1: International Human Rights Treaties Ratified by Haiti 200 Box 6 - 2: Free, Prior, and Informed Consent (FPIC) and Haitian Commun ities Affe cted by Mining 205 Box 6 - 3: Health Conditions in Haiti 208 Box 6 - 4: Land in Haiti 209 Box 6 - 5: Text of the Land Access Agreement 213 Box 6 - 6: Local Officials of an Absent State 224 Box 6 - 7: Mining, Security, and Human Rights 228 Box 6 - 8: International Finance Corporation Support for Eurasian Minerals in Haiti 233 BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISK S OF GOLD MINING IN HAITI i Acknowledgements Principal Authors of the Report & Research Directors Brian Gray, Professor Emeritus, University of California Hastings College of the Law Ellie Happel, Haiti Program Attorney, Global Justice Clinic Nikki Reisch, Legal Director, Center for Human Rights & Global Justice (CHRGJ); Adjunct Professor of Clinical Law, GJC, NYU School of Law Margaret Satterthwaite, Director, GJC; Faculty Director, CHRGJ; Professor of Clinical Law, NYU School of Law C O L L A B O R A T I N G P A R T N E R Kolektif Jistis Min (Justice in Mining Collective, or KJM) C O N T R I B U T I N G A U T H O R S Blaine Bookey, Co - Legal Director, Center for Gender & Refugee Studies Samuel Nesner, Kolektif Jistis Min Ijeamaka Obasi, Law Student Advocate, Global Justice Clinic (2015) Mary “Mimi” Powel, Law Student Advocate, Global Justice Clinic (2015) Joanna Pozen, Fellow, Global Justice Clinic (2013 - 2014) Rebecca Riddell, Law Student Advocate, Global Justice Clinic (2013 - 2015) Nancy Schn eider, UC Hastings Law Student (2013 - 2015) Lauren Stewart, Senior Program Officer, Solidarity Center, AFL - CIO Sam Szoke - Burke, Law Student Advocate, Global Justice Clinic (2013 - 2014) Kate Taylor, Law Student Advocate, Global Justice Clinic (2015) N Y U G L O B A L J U S T I C E C L I N I C A N D U C H A S T I N G S C O R E R E S E A R C H Yair Chaver (2013) Eldemira Diaz - Weaver (2013) Cassandra Kerkhoff (2013) Etienne Chenier - Laflèche (2014 - 2015) Michael Marchese (2013) Rebecca Riddell (2013 - 2015) Derek Schaible (2013 - 2014) Nina Sheth (2013 - 2014) Sam Szoke - Burke (2014) A D D I T I O N A L R E S E A R C H , W R I T I N G , A N D P R O D U C T I O N A S S I S T A N C E Vishney Ambalavanar (2014) Jean - Luc Adrien (2014 - 2015) Gabrielle Apollon (2013) Tom Artaki (2013) Rita Astoor (2014) Mikhail Chykiliov (2013) Felicity Conrad (2013) Katherine Erickson (2014) Astrid Caporali (2015) Jocelyn Huang (2013 - 2014) Nicole Karlebach (2014) Tiffany Lin (2015) Hanna Miller (2014) Meredith Riley (2015) Arlene Rivera (2014) Sandra Santa (2013) Rebecca Sheff (2013) Erin Taylor (2014) Ketienne Telemaque (2014) Nathan Yaffe (2014 - 2015) ii BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISK S OF GOLD MINING IN HAITI C H R G J S U P P O R T John Emerson, Research Scholar (2015 ) Michelle Austin, Administrative Assistant (2015) Rebecca Hamilton, Research Fellow (2015) Veerle Opgenhaffen, Executive Director (2013 - 2014) Audrey W atne, Deputy Managing Director (2015 ) Diana Limongi, Clinic Administrator H A I T I J U S T I C E I N I T I A T I V E D I R E C T O R S Blaine Bookey Kate Bloch Richard Boswell Karen Musalo A D V I C E , E D I T O R I A L R E V I E W , A N D O T H E R S U P P O R T Accountability Counsel Moira Duverney, UC Hastings Environmental Law Alliance Worldwide Marie - Claude Jean - Baptiste, Cyrus R. Vance Center for International Justice Elizabeth Hillman, UC Hastings John Leshy, UC Hastings Mark Logsdon, Geochimica Inc. Robert Moran, Michael - Moran Assoc., LLC Orrick, Herrington & Sutcliffe LLP (Paris Office) James Otto, Independent Natural Resources Attorney and Economist Nicole Phillips, UC Hast ings Naomi Roht - Arriaza, UC Hastings David Takacs, UC Hastings Philip Tunley, Stockwoods LLP Barristers Jean Frenel Vincent, É cole Sup é rieure Catholique de Droit de J é r é mie (2014 ) C I T E C H E C K I N G Maryam Al - Dabbagh Jennifer De Jesus Nireeti Gupta Jessica Huang Natasha Jha Natalie Koski Karell Jessica Lepper Freddy R. Lopez Joanna Louise Stokes Michelle Morales Ijeamaka Obasi Mary “Mimi” Powell Sid Singh Kate Taylor Pallavi Vishwanath Nathan Yaffe C O P Y E D I T I N G Boomie Aglietti P H O T O S Ben Depp D E S I G N A N D L A Y O U T John Emerson SooYoung VanDeMark F U N D I N G 11 th Hour Foundation Center for Human Rights and Global Justice New York University School of Law UC Hastings Haiti Justice Initiative UC Hastings Center for Gender & Refugee Studies UC Hastings Faculty Research Fun d BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISKS OF GOLD MINING IN HA ITI 1 I. Executive Summary ! Resident, Gode Since I was a little kid I have listened to my grandparents talk about the riches that are in the Haitian soil. We don’t have the tools we need to exploit them. But the foreigners have recently returned, and we know in history this has caused problems. ! Resident, La Mine The reason we are upset is not because foreigners are mining. We don’t know enough about mi ning to know if it is good for us. We are upset because the foreigners never introduced themselves. ! Community leader, La Montagne We live in a State that has never integrated us into the political life of the country. Haiti stands at a crossroads: The prospect of gold mining glitters on the horizon, while the reality of an uncertain political future , weak institutions, and widespread impoverishment glares in the foreground. Celebrated as the only nation in the world bo rn of a successful slave revolution , but known today as the poorest country in the W estern H emisphere, Haiti is a fragile, if resilient, place. Rights are precarious , and basic resources are scarce. As of 2014, only 62 percent of all households in Haiti had access to safe drinking water, while less than 50 percent enjoyed such access in rural areas. 1 The cholera epidemic that erupted in 2010, which has taken more than 9 , 000 lives to date, 2 has revealed the vulnerability of the Haitian population amid ina dequate water, sanitation, and health infrastructure. But it has also highlighted the power of popular protest. Haiti has a longstanding tradition of peasant movements, in which ordinary Haitians have mobilized to challenge and overcome injustice. It is in this context — against the backdrop of the country’s complex history with foreign intervention and investment — that efforts to develop a mining industry in Haiti must be understood. Minerals can be exploited only once. Th e current moment, before minin g has begun, presents a unique opportunity for the Haitian people to engage in a robust public debate about the risks and benefits of mining and for the Haitian State to implement preventive measures to avoid future human rights abuses and environmental ha rms. Such a debate requires transparency, public education , and active engagement of Haitian communities. Until now, most discussions about mining have occurred behind closed doors among government officials, company stakeholders, and international finan cial institutions. There is a dearth of information in the public domain about what gold mining entails, what challenges it poses, what opportunities it presents, and what it may mean for communities and the country as a whole. The purpose of this R eport is to help fill that gap. 2 BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISK S OF GOLD MINING IN HAITI A. Haiti’s Emerging Mining Sector Several factors have combined in recent years to amplify interest in mining in Haiti. Chief among these are the recent history of rising gold prices, the Haitian government’s efforts to a ttract foreign investment, and the demonstrated productivity of the Pueblo Viejo mine in the Dominican Republic. Haiti shares with the Dominican Republic not only the island of Hispaniola but also the rich mineral belt from which the Pueblo Viejo mine is drawing gold and copper — a belt that stretches across Haiti’s northern departments. The Pueblo Viejo mine is one of the most productive in the world and has spurred interest in th e mineral deposits that may lie beneath Haitian soil. The full extent of Hai ti’s mineral resources is un known, but some estimates place the value of the gold alone at $20 billion. 3 There are no active metal mines in Haiti yet, but the government has identified the mineral sector as key to the country’s economic growth over the n ext two decades and has encouraged foreign interest . 4 Between 2006 and early 2013, two Canadian and two U.S. companies reportedly invested more than $30 million to explore for gold, copper, silver, and other metals. 5 Since early 2013, however, mining activity in Haiti has been on hold. In February of that year, the Haitian s enate passed a resolution calling for a moratorium on mining, citing concerns about the process for granting permits and the danger mining poses to the environment. 6 Shortl y thereafter , the Haitian government sought assistance from the World Bank and the International Monetary Fund to rewrite its outmoded mining law, which dates to the Duvalier era. The proposed new mining law was drafted with input from mining companies th at hold interests in Haiti , but without the participation of the Haitian public. Many c ommunities remain largely unaware of efforts to encourage metal mining in the country . Although the World Bank has identified “strengthened institutional capacity” and “transparency” as “critical next steps to unblock the exploration of Haiti’s gold and copper potential and pave the way for this promising new wealth - generating sector,” 7 the reform proce ss to date has focused on revision of the legal framework for mining. No World Bank - funded institutional capacity - building measures are underway or planned, 8 and there has been a marked lack of transparency and meaningful public dialogue about the mineral sector in Haiti. In August 2014, a task force of Haitian officials and international experts 9 presented a draft of a proposed mining law to the office of then - P rime M inister Laurent Lamothe. In the months that followed, however, Lamothe resigned and Pa rliament was dissolved. The progress of mining sector reforms grew even more indeterminate in 2015 as the country entered a period of rule by presidential decree . President Michel Martelly , a pop singer who came to power in the aftermath of the 2010 earthquake, is one of just 11 elected officials in all of Haiti. 10 As this R eport goes to press, Haiti is in the midst of election turmoil. Parliamentary, local, and presidential elections occu rred in August and October 2015. These elections have been denounced broadly . They were marred by violence, intimidation, and calculated fraud. 11 S ince first - round presidential e lection results were announced on November 5, Haitians have organized mounting protests, demanding BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISKS OF GOLD MINING IN HA ITI 3 that allegations of fraud be investigat ed and, at times, going so far as to call for the resignation of President Martelly . 12 T he political future of Haiti remains uncertain. Although little information about the pl an to develop the mining industry has been made public, the information that has been disclosed has alarm ed Haitian social movements and civil society organizations. These groups are concerned about both the lack of transparency surrounding the development of the mineral sector and the environmental and social impacts of mining. Some r esidents of communities where mining companies have explored for gold and copper have complained of individuals entering t heir lands, mar k ing their property, taking samples without permission, and failing to provide adequate information about the purposes of these preliminary mining activities. Community members have expressed frustration at being excluded from decisions tha t affect their lives. Modern gold mining , wherever it occurs, takes a toll on the environment and on communities. Experience around the world underscores the risks that mining poses to land and water resources, as well as to social structures, livelihoo ds, and pre - existing economic activities. In Haiti, those risks are heightened by the country’s vulnerabilities to natural disaster and environmental harm — vulnerabilities that stem from both the country’s physical location in the Caribbean and from human - made factors, including deforestation, inadequate planning of land and water, and lack of regulatory supervision and enforcement. Haiti is also one of the world’s most densely populated and economically unequal countries in the hemisphere . These co nditions not only elevate the social and environmental risks of mining but also increase the likelihood that adverse impacts will disproportionately affect those Haitians who are already most socioeconomically marginalized and vulnerable to human rights ab uses. The future of mining in Haiti depends on a number of uncertain factors, among them domestic and international politics, the willingness of investors to take a risk on mining in Haiti, and the price of gold and other precious metals. Ultimately, ho wever, decisions about whether, when, and how the industry develops should rest with an informed Haitian public. B. Report Objectives and Approach Recognizing the important decisions that Haiti faces, the Global Justice Clinic at New York University School of Law (GJC) and the University of California Hastings College of the Law have prepared this R eport concerning the risks and realities of modern gold mining and its implications for human rights and the environment in Haiti. The R eport is the fruit of collaboration between environmental law experts and human rights lawyers, informed by the Justice in Mining Collective, a platform of Haitian organizations and individuals committed to promoting the interests of Haiti’s rural, norther n communities and prompting a national dialogue about the future of Haiti ’s mineral resources. Consistent with best practice in the field of international human rights, th is R eport is ba s ed on intensive documentary research and review of primary and secon dary materials on gold mining in Haiti; interviews with community members, Haitian government officials, and representatives of mining companies and 4 BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISK S OF GOLD MINING IN HAITI international organizations operating in Haiti; field investigation; and discussions with members of commun ities in areas where companies hold permits for activities related to gold mining. The R eport is a product of more than 100 days of interviews and participant observation in more than fifty meetings held in communities affected by mining - related activitie s in Haiti ( see infra ) . All R eport - related research in Haiti was undertaken using a human rights - based approach, which supports the power and capacity of people and communities to change their own lives, both independently and through institutions that r epresent or affect them. This approach takes respect for human rights as its starting point and end objective, emphasizes the informed engagement of rights - holders in both the analysis of factors affecting their own lives and the design of solutions, and stresses accountability, by including evaluation of both the process and outcomes of the research. The R eport addresses four main issues: (1) the process of modern gold mining, through an examination of its mechanics around the world and a history of extractive activity in Haiti; (2) the experiences and concerns of communities in Haiti that have hosted mineral exploration in the past ten years, including commu nity members’ allegations that mining companies have failed to respect human rights and the communities’ fear of future human rights violations; (3) the environmental and social risks of mining gold in Haiti; and (4) the institutional, legal, and regulator y frameworks that will shape the economic, social, and environmental consequences of mining in Haiti . C. Chapter - by - Chapter Overview Chapter I sets the scene, describing the historical backdrop and political context of the current interest in Haiti’s mineral wealth. Since its origins as the first Black r epublic and the only nation in the world born of a successful slave revolt , Haiti has suffered political exclusion and economic subjugation at the hands of France, the United States , and the internatio nal community. Th is opening c hapter outlines the challenges that Haiti has faced since its founding , which have led to the poverty, institutional weakness, inequality, and political failures that beset the island nation today. These challenges include the exorbitant debt extorted by France throughout the nineteenth century , the cycles of foreign occupation and dictatorship that dominated the twentieth century , and the international intervention and aid of recent years . The international community’s cir cumvention of the Haitian government in administering post - earthquake relief struck the latest blow to Haitian democracy , further eroding the social contract between the people and the institutions that purportedly represent them. Chapter I also explores the causes of Haiti’s heightened vulnerability to environmental and social harms and cautions that, if not properly managed, mining could exacerbate inequality and existing problems related to subsistence agriculture, water supply and quality, deforestation, and destitution in Haiti’s northern departments . Chapter I turns next to the history of mineral extraction on the island of Hispaniola and modern, large - scale gold mining in the late twentieth and twenty - first centuries. I t presents the p rincipal BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISKS OF GOLD MINING IN HA ITI 5 actors promoting mineral development in Haiti today : the Haitian government, international financial institutions, and mining companies. It explains how the political controversy over the mineral exploitation permits issued unilaterally by the Bu reau des Mines et de l’Énergie ( Bureau of Mines and Energy , or BME) in December 2012 prompted the Haitian s enate to pass a resolution in February 2013 calling for a moratorium on mining. The chapter concludes with an introduc tion to the communities affected by gold mining activities and the social movement organizations that strive to help the local populations remain visible and influential in politicized decisionmaking processes that so often fail to take notice of them. Chapter I I explains how modern gold mines operate , present ing the geology of gold and the mechanics of mineral exploration, mine construction , and mineral extraction. It details the open - pit method of extraction likely to be used in Haiti if mining proceeds and provides an overview of common techniques for refining and processing gold. It also discusses the mineral exploration activity conducted in Haiti to date by foreign companies and their Haitian counterparts : VCS Mining LLC and its subsidiaries , Delta Socié té Minière S.A. and SONO Global Holdings Inc. ; Majescor Resources Inc. and its Haitian partner (and now majority owner and operator of the previously jo intly held permits) , Société Minière du Nord - Est S.A. ( SOMINE ) ; and the former joint venture between Newmont Mining Corporation and Eurasian Minerals Inc. 13 and their respective subsidiaries . Chapter III presents the environmental risks of gold mining and community concerns about the impacts of mineral exploration in Haiti to date. The construction and operation of a modern gold mine fundamentally alters existing uses of land, water, and other natural resources, often displacing housing and community structures or disrupting farming and other economic activities. Moreover, mining has “spillover” effects beyond the mine’s perimeter, including pollution of air and water, as well as disturbance and depletion of surface and groundwater resources. This chapter discusses how these impacts could affect the communities of Haiti’s Massif du Nord, where most of the areas designated by the mineral permits are located. The chapter outlines the potential environmental risks posed at e ach phase of mining operations , from exploration through mine closure and rehabilitation . A lthough many mining companies around the world have taken steps to reduce these risks and to mitigate environmental harm, modern large - scale mining remains an inherently dangerous activity , particularly with respect to its impacts on water . For example, a t Pueblo Viejo, a mine operated by Barrick Gold Corporation i n the neighboring Dominican Republic, there have been serious problems with contamination of water sources due to “toxic mine drainage” (TMD), caused when metals and metalloids previously embedded in the rock unearthed during mining are exposed to oxygen and carried by surface runoff into adjacent streams . Studies of the mineral content of rocks and soil in the Massif du Nord suggest the potential for simil ar TMD in Haiti . Chapter III also presents perspectives of community residents in the Massif du Nord, who revealed through interviews with GJC that few local people had received any information about the physical scope or risks of gold mining, either from company officials or from the government. 6 BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISK S OF GOLD MINING IN HAITI Further, many residents alleged that mineral exploration activities destroyed their crops and have had a long - term impact on their ability to grow food. In view of the challenges of regulating the mining indust ry and the serious, unavoidable risks it poses to health and the environment, Chapter III raises questions about the institutional capacity of the Haitian government to control mining operations and ensure health and safety after mine closures . The small budget and limited staff of the BME , the agency responsible for mining, and the apparent lack of familiarity of other ministries with the realities and risks of mining suggest that the Haitian State is ill - prepared to supervise the mining sector in the int erests of the Haitian public . Chapter IV presents the economics of gold mining in Haiti. Mining is an inherently unsustainable activity : The ore that is extracted is not replenished, and over the life of the mine the minerals in the earth are depleted. This chapter cautions against overestimating the economic benefits of gold mining for Haiti, given fluctuations in world gold prices, the relatively low royalty rate likely to be imposed on mining companies, uncertainties in domestic and international tax law, and the costs of mitigating the short - and long - term impacts of mining, such as remediation after mine closure. The Haitian Constitution of 1987 requires that the State (as owner of the gold reserves in trust for the Haitian people), the mining compa nies (as concessionaires), and the surface owners of the land beneath which minerals lie share equitably in the profits of mining. 14 For this mandate to be fulfilled , Chapter IV explains, the financial terms of the mining law must be improved and the Haiti an government must ensure that it will conserve and invest the revenues it receives from royalties and taxes for the benefit of the Haitian people . The fi scal benefits to Haiti from gold mining are uncertain. Under both the current mining law and proposed new law, the companies would be required to pay a combination of taxes and royalties. The royalty — which is based on the value of the gold rather than on corporate profits — is presently 2.5 percent 15 and would rise to 4 percent under Article 235 of the proposed new law. 16 The companies also would have to pay corporate income and other taxes. Yet, it remains unclear whether they could benefit from Haiti’s 2002 Investment Code, which includes a number of tax incentives and exemptions designed to a ttract investment and new businesses to Haiti. 17 If the Code were to appl y , mining companies would receive enormous ta x benefits, including a fifteen - year exemption from corporate income taxes. 18 T he relatively modest revenues that Haiti is likely to recei ve from gold mining, given the proposed royalty rates and tax regime, cast doubt on whether the potential economic benefits of mining justify the known risks to public health, the environment, local communities, and human rights. W hile the benefits of min ing may accrue to the nation as a whole, the costs of mining would be borne disproportionately by local communities, including landowners, farmers, and residents displaced by the mines and others who may suffer from downstream or downwind pollution. BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISKS OF GOLD MINING IN HA ITI 7 By posing questions about fiscal uncertainty, financial sustainability, and fair sharing of revenues from mining, Chapter IV aims to help the Haitian government and the public understand and debate the economic complexities of gold mining before any decisi on is taken to adopt a new mining law and to allow gold mining to begin. Chapter V evaluates the legal framework for mining in Haiti. It examines the constitutional parameters for regulation of the mining industry and discusses deficiencies of the curr ent law , the Mining Decree of 1976. The analysis reveals that the Mining Decree is both overly complicated and under - protective of the environment and the populations most at risk from mining. Although there is general agreement that the existing law is outdated , the lack of transparency surrounding the proposed new mining law — which was drafted in collaboration with mining companies that hold permits in Haiti , but without input from civil society — raises significant concerns about whose interests would be represented under the revamped legal framework. Moreover, given the dearth of institutional capacity within the government to monitor the mining sector, passage of a new law designed to usher in investment may be premature. In January 2015 , civil society organizations and community members presented these concerns to the World Bank’s accountability mechanism , which found them to be “serious and legitimate.” 19 Chapter V looks in detail at the August 2014 draft of the proposed new mining law and provides a critical analysis of its key provisions. 20 The draft text includes some important improvements to the existing regime — notable among them a reorientation from the current convention - based system , in which fiscal terms and other performance r equirements are negotiated with each mining c ompany, to a permit - based system , in which essential terms are fixed in the mining law, thereby establishing a uniform regulatory structure from which individual mining conventions may not derogate. The draft l aw falls short of protecting rights guarantee d in the Haitian Constitution, however, including the right to a healthy environment, the right to property, and the rights to information and participation. It also restricts p arliamentary oversight, delegatin g important legal and policy decisions to a new governmental institution, the Autorité Minière Nationale ( National Mining Authority , or AMN ). 21 Removing decisions on key regulatory details from the legislative process risks the loss of democratic consultation and diminishes the ability of interested stakeholders to influence the drafting of substantive rules th at will be critical to the well - being of communities and the environment. Chapter V points to other significant shortcomings in the proposed law . One article would require all mining - related information to be kept confidential for a period of ten years, effectively foreclosing meaningful public oversight of mining activities and regulatory compliance . 22 T he broadly worded provision co ntains no exception for documents of public interest, such as those that pertain to the environmental and social impacts of mining . Nor does the draft law require mining companies to disclose the revenues they earn or amounts they pay to the Haitian State . 23 Certain articles pertaining to the land use compensation and dispute resolution scheme would facilitate expropriation of land for mining activity while limiting citizen recourse in the event of conflicts, channeling disputes to arbitration rather than to the Haitian courts. Another provision 8 BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISK S OF GOLD MINING IN HAITI would allow mining to begin based on a statement of “no objection” from the Ministère de l’Environnement ( Ministry of the Environment ) , which may be presumed after a given period of time, rather than affirmative environmental clearance. And many provisions lack sufficient detail to guide rigorous environmental or social review, deferring crucial standards and rules to implementing regul ations to be adopted in the future by the AMN , an institution that does not yet exist and whose annual budget, staffing, and professional expertise are not defined . Ultimately, Chapter V concludes, t he strength of the legal regime governing mining in Hait i depends not just on the text of the framework statute and accompanying regulations but also on the technical, institutional, and financial capacity of the State and its political will to implement and enforce those laws. Without deliberate debate, caref ul planning, and reinforcement of governmental regulatory capacity, there is a risk that mining would begin under a new law before the State is equipped to ensure that mineral extraction benefits and does not harm the Haitian people and their environment. Chapter VI addresses the human rights implications of gold mining, from the entitlements of individuals and communities affected by mineral exploration and extraction to the domestic and international legal duties of actors responsible for mining, includi ng the Haitian government, private companies, and international organizations supporting the sector’s development. The starting point for this chapter is the recognition that any mining activity in Haiti necessarily occurs in a context already characterized by widespread rights abuses, particularly deprivations of economic and social rights and denial s of the right to information and political participation . Given these baseline conditions — and the pre - existing exposure of communities to natura l disaster, drought, and disease — Haitians are especially vulnerable to the risk of mining - related violations of the rights to water, health, freedom from forced displacement, and civic participation. International human rights law protects numerous rights that are predicated on a healthy environment and a safe community. The prospect of large - scale mining creates the potential for violations of the right to water through impacts on both the quantity and quality of water on which adjacent and downstream co mmunities rely. 24 Gold mining may also jeopardize public health and diminish agricultural production by polluting the air and soil in communities located downwind of the mines. Poor living conditions, lack of access to healthcare, and weak health infrastr ucture in Haiti exacerbate these risks. Domestic and international law guarantee the right of all Haitians to participate fully and equally in deliberations about mining. Meaningful participation requires that complete, accurate, and objective informatio n be provided to the Haitian people — especially those who live in the often remote communities that would be most affected by mining. This information must be made available in a timely manner, in Creole, both in writing and through oral means of communication , such as by radio, so that individuals and communities can make use of it in their deliberations and decisions. The case study in Chapter VI about the administration of land access agreements in Haiti's Northwest Department shows that the ri ghts to information and BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISKS OF GOLD MINING IN HA ITI 9 participation have not been respected. Evidence from La Montagne reveals that Haitian government officials were notably absent from the process; they neither informed the local population about mining before Newmont - Eurasian’s arri val nor support ed rural farmers as they negotiated access to their land. In many instances, agreements appear to have been concluded without the informed consent of the individual landowner. The Haitian government bears the primary duty to respect, pro tect, and fulfill the human rights of its people to water, health, food, information , and civic participation, among other rights. But responsibility does not rest solely with the Haitian government. The international community, too, has a vital role to play to ensure respect for the human rights of Haitians and to build the capacity of the State to ensure these rights. And while the scope of the human rights obligations of non - S tate actors, such as p rivate businesses and intergovernmental organizations ( the World Bank, for example) remains contested, there is an emerging consensus that all of these actors have — at a minimum — an obligation to respect human rights whenever and wherever they act. When gov ernments lack the resources and/o r will to respect those rights , other actors operating in the country must recognize the increased risk of their actions trigger ing violations for which individuals have no remedy. With an inherently risky industry such a s gold mining, much depends on the capacity and willingness of the Haitian government to regulate and monitor the actions of powerful companies. This supervision is all the more pressing in remote areas populated by communities that have been marginalized by poverty and historical exclusion. The people of Haiti have a full range of rights that must be assiduously protected. Without inclusive and participatory governance, Haiti’s apparent bounty of mineral resources could easily transform into a curse. II. Methodology A. Rights - Based, Qualitative Approach Research for this R eport was conducted using a rights - based approach (RBA). This approach, often applied in development programming but equally relevant for human rights advocacy, endeavors to place the rights - holder “at the center of those interventions designed to improve access to rights.” 25 This focus requires close collaboration with rights - holders in the course of research. The aim of such collaboration is to define the object of inquiry together so that findings are directly relevant to the communities’ ability to claim their rights. In cases such as this one, investigation is not aimed at producing “generalizable knowledge” but is instead conducted to understand the experience of rights - holders and to identify the obligations of duty - bearers. 26 For these reasons, the focus was not on analyzing trends or specifying the prevalence of rights violations — goals for which quantitative methods are often suitable. Instead, the authors chose qualitative a pproaches as most appropriate and effective. 10 BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISK S OF GOLD MINING IN HAITI Gold mining - affected communities in Haiti expressed concerns about their right to access information concerning mining; to be consulted in decisions related to mining; to make informed and free decisions concer ning the use of their land; and to continue to engage in subsistence farming. They also expressed concern about the way some mining - related activities have been conducted to date and feared lasting impacts of even early exploration activities. The invest igations carried out for this R eport therefore aimed to shed light on these issues by combining desktop legal, technical, and policy research with field s tudies . The desktop research focused on the processes and risks of gold mining, fiscal options for th e gold mining industry in Haiti, the legal framework for mining, and the human rights obligations related to mineral extraction. Field investigations were carried out in Haiti’s n orthern provinces — the North, Northeast, and Northwest Departments. The info rmation collected in the field was obtained in conjunction with legal advocacy and through participant observation, site visits, community meetings, small group interviews, and individual interviews. During the time this research was being conducted, GJC and the U.S. - based nongovernmental organization Accountability Counsel assisted Haitian communities to bring a complaint before the World Bank Inspection Panel concerning the World Bank’s activities related to the revision of Haiti’s D raft M ining L aw. Inf ormation from this case was also integrated into this R eport where appropriate. As a general matter, GJC staff and students carried out the field components, in collaboration with numerous Haitian colleagues, and UC Hastings and GJC researchers conducted the desktop research (see A cknowledgements). B. Desktop Study and Legal Analysis Desktop research for this R eport was conducted in English and French, and it combined legal and policy reviews with assessment of economic, scientific, and technical matters. Legal research was conducted by law students, a law firm, and legal staff of GJC . Company documents were widely consulted , and publicly reported information was integrated into the text. Peer reviewers drawn from the relevant technical fields provided in - depth input into the environmental, fiscal, and technical dimensions of the R eport. This input was carefully relied upon to revise the R eport text. Maps were created based on shapefiles constructed from a variety of sources. These sources consisted primarily of three types: mining compan y materials , Haitian government documents, and third party institutional reports. When possible depending on availability, exact coordinates for the per imeters of boundaries depicted in shapefiles were used. Otherwise, the boundaries depicted in the shapefiles were created by consulting available aerial imagery denoting boundaries and cross - referenced against material specifying surface areas ( e.g., of t he land under permit ) . Finally, a shapefile was manually “drawn” with the correct surface area, matching as precisely as possible the boundaries as seen from aerial imagery. For some areas known to be under permit, it was not possible to cross - reference against both aerial imagery and surface area information; for others, conflicting information was available from different points in time. The boundaries depicted in the maps contained in this R eport are as accurate as possible given the significant data limitations relating to mineral permitting in Haiti. BYEN KONTE, MAL KALK ILE? HUMAN RIGHTS AN D ENVIRONMENTAL RISKS OF GOLD MINING IN HA ITI 11 C. Testimonial and Investigative Methods Primary information for this R eport was collected using a range of qualitative approaches, from participant observation and site visits to community meetings, small group interviews, and individual interviews. The field components were carried out between February 2013 and November 2015. During this period, GJC personnel visited mining - affected communities with Haitian colleagues. UC Hastings personnel also met wi th members of three communities in Haiti’s Massif du Nord in March 2014. Additional individual interviews were conducted in Port - au - Prince and via telephone and Skype by GJC and UC Hastings. Information was gathered on the basis of informed consent. 1. Par ticipant Observation and Site Visits GJC made four dozen site visits to gold mining - affected communities between February 2013 and August 2014. During these visits, GJC personnel worked alongside Haitian colleagues to learn as much as possible about gold mining - related activities and community members’ understanding and experiences of these activities. Through long hikes to communities, visits to land impacted by drilling, and discussions with community members and leaders, GJC learned a great deal about the communities where companies hold gold mining permits. Altogether, GJC visited approximately 18 communities in 10 communes and 3 departments. 2. Community Meetings In conjunction with Haitian colleagues, GJC held dozens of community meetings. During t hese meetings, GJC learned about the level of awareness and understanding of community members about gold mining. Discussions during these meetings focused on the legal framework for gold mining in Haiti, human rights related to mining activiti