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Other scholars further argue that it is not the absence of appropriate environmental legislation which undermines environmental policy, but rather the lack of the necessary human and financial resources which has resulted in limited monitoring and enforcing capabilities of regulatory agencies (Zhong, 1997; Acquah and Boateng, 2000; Andrews-Speed et al., 2003; Hilson and Haselip, 2004; Sarrasin, 2006). The World Bank made a similar point in its 1998 report, “After several years of budgetary reductions, Government institutions lack the human and financial resources to enforce the law, especially in the context of decentralization” (Sarrasin, 2006). This has given rise to a sort of “no man’s land” of implementation for both state-owned mining entities and private mining groups.
In dire need of attracting foreign investment so as to drag state-owned mining operations out of long-time low economic efficiency, governments in developing countries have lifted excessive control over these state-owned enterprises by imposing loose regulation (Hilson and Murck, 2000; Bastida, 2002; Hilson and Haselip, 2004), or practising self-monitoring and periodical reporting mechanisms (Acquqh and Boateng, 2000). Clark (2003) has offered a convincing example of Bolivia where, since 1985, the Government’s main task concerning mining has been to increase foreign investment through dismantling national regulations (Hilson and Haselip, 2004). One more striking example tells a story of a Guyanese court that dismissed a case related to 23,000 residents affected by a serious spill accident caused by the Omai Mine, operated by a Canadian-based multinational, on the grounds that suing foreign enterprises would undermine the policy of attracting investment (Hilson and Haselip, 2004). On the other hand, some multi-national companies tend to take advantage of weaknesses in legal framework in the host country and fail to work wholeheartedly toward improving their environmental performance (Weber-Fahr et al., 2002; Hilson and Haselip, 2004). As a result of this implicit collusion between governments and companies, liable parties either are exempted from fines because of the power they command (Hilson and Haselip, 2004) or paying just symbolic fines (Warhurst, 1999).
As far as non-state-owned domestic mining groups, especially small-scale mining groups are concerned, two features relate to poor implementation. The first is that the poor awareness on the part of government of the needs and the importance of these groups in many developing countries has enabled them to take advantage of the weak environmental legislation pertinent to them, and of the ineffective enforcement (Hilson, 2002; Andrews-Speed et al., 2003). Small-scale mines in China are exempt from paying an environmental fee for excessive discharge of pollutants because of a shortage of such relevant regulations. India, Zimbabwe, Brazil and Ghana are said to have made efforts to formulate sector-specific legislation, but little information is available on the impact of such improved legislation (Hilson, 2002). The second feature of small-scale mining groups is that, compared to state-owned mining entities, almost all of them are economically and technologically constrained through the lack of government assistance (Hilson, 2002). Local miners often find themselves hard up when assuming liability. These two distinctive features have rendered the task of identifying liability and enforcing reclamation almost impossible for non-state-owned domestic mining groups.
In practice, the application of Polluter Pays Principle (PPP) to identify liable parties for the cleanups is not without problems, especially for active or operational mines, where people tend to ignore on-going cleanups. Some have argued that this command-and-control mechanism may not necessarily ease environmental degradation nor improve environmental management in mineral production because the polluter only pays when environmental impacts have become obvious and when he is subject to punishment (Warhurst, 1999). In fact, some environmental consequences caused by mining, like acid mine drainage, are extremely expensive to address and sometimes the available technology cannot tackle the fundamental cause of the pollution and to prevent its recurrence. For all these reasons there is a tendency for environmental regulations in developing countries to address only the symptoms of the pollution rather than political, economic and technological causes (Warhurst, 1999).
The challenges specific to each category of mine along with practical difficulty in imposing PPP leads to the conclusion that the environmental risks and responsibility for the cleanup of mines, especially of abandoned mines must rest with the state, or rather, with the whole of society (Warhurst, 1994; Kahn et al., 2001; Weber-Fahr et al., 2002). Apparently, it is imperative for developing countries to formulate coherent and stringent sector-specific legislation, and to design incentive programs to stimulate both local companies, and current and potential foreign investors to assume the cleanup liability. In addition it is desirable to incorporate PPP into projects from the very beginning or to combine PPP with some economic incentives such as flexible performance bonds, performance bonuses, and insurance-based policies (see Kahn et al., 2001 for more options), in order to encourage efficient production, technological and managerial improvements, as well as effective training and information dissemination.
In Argentine EIA is required on a phased basis throughout a mining operation and the proposed mitigation measures at each phase are reviewed separately for approval. If approved, these measures form the basis for the control and monitoring of the operation (ELI, 2000). China’s requirement in its Three Simultaneous Regulations Principle (TSRP) for mitigation facilities to be concurrently designed, built and put to operation with the major part of the project has proven effective in combating air and water pollutants (Zhong, 1997).[6] All of these practices, when properly designed for mining activities and combined with some of the economic incentives mentioned above, can not only allow governments to more easily trace and establish the liable party at each phase; but also to reduce the financial costs incurred in repairing the environmental impacts.
In recent years a number of developing countries have begun to make rapid strides in their legislation on mine land reclamation by integrating reclamation planning into the process of mining licensing. For instance, both the Ghanaian and Philippine legislation require any applicant for mining rights to provide a reclamation and decommissioning plan specifying the end uses of all land affected by mining, and some kind of trust or a bond to cover compensation for the damage caused by mining (Berlin Report, 1999; Acquqh and Boateng, 2000). In some Latin American countries the mining sector is beginning to apply voluntarily environmental management systems, such as ISO 14000 (Bastida, 2002) which would help put in place improved legal frameworks and institutional mechanisms. The challenge at this stage is to ensure availability of human and financial resources and institutional capacity.
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