Rachael Lorna Johnstone and Anne Merrild Hansen in Tasiilaq.
Dr Rachael Lorna Johnstone
Adjunct Professor of Law, Ilisimatusarfik, Greenland; Professor of Law, University of Akureyri, Iceland
Extractive industries bring both opportunities and risks to Arctic communities. While they can contribute to human development, by providing employment, training, infrastructure, and cash transfers, the ecological, social and human damage caused by a badly managed mine or oil field is all too well-known from lamentable experiences in other parts of the World. Whether the impacts are largely positive or negative, one constant remains: extractive projects bring change.
The Arctic countries all require advanced environmental and social impact assessment processes (EIAs and SIAs) before any extractive projects come to fruition.An Impact Benefit Agreement is usually agreed based, in part, on the EIA and SIA findings in order to maximise positive impacts, minimise negative impacts and support equitable distribution. However, EIA and SIA requirements vary in terms of screening, scope, timescale, public consultation, and review procedures, etc.
In my work with Anne Merrild Hansen at the Arctic Oil and Gas Research Centre of Ilisimatusarfik (University of Greenland), we travelled to different towns and settlements in Greenland to ask people about their hopes, expectations and fears regarding extractive projects. Irrespective of people’s support, opposition, or uncertainty regarding either specific projects or extractive industries in general, there were two constant factors: they wanted more information, and they wanted to have an influence.
It appeared to us that the companies were meeting the requirements of the pertinent legislation, and yet the people most affected by their decisions remained dissatisfied. There are an increasing number of international standards – some based on treaties like the Aarhus Convention (to which Greenland is not a party) and the general human rights conventions, some from UN instruments such as the UN Declaration on the Rights of Indigenous Peoples and the UN Guiding Principles on Business and Human Rights, others from the OECD, and yet more originating in corporate social responsibility frameworks.So how could there be such a mismatch between the lofty goals of community participation and people’s frustration? And what could be done to improve communication, enhance public engagement and ultimately lead to better project management?
To answer these questions, we called on another ten experts on extractive industries and public participation to try to identify ways in which we could make the consultation processes more inclusive and increase their legitimacy. Our principal conclusions are as follows:
Most people felt that they received information much too late. For mining projects in Greenland, for example, the EIA is concluded after the exploration phase. But explorations often take years, during which time there is a great deal of speculation and doubt. Communities experience change as soon as there are rumours of a potential investment or when the first boots are on the ground exploring a mountain. Lack of communication damages trust profoundly, and it is very difficult to renew that trust later. Information should be shared with communities as soon as a company shows interest in local resources. Companies should also manage expectations by advising communities of the likelihood that early prospecting or even exploration will never lead to exploitation.
There should be better institutional knowledge and understanding of the international standards amongst the decision-makers in government and industry, in particular, as regards the rights of indigenous peoples. National legislation should be regarded as a floor, not a ceiling, for participation, and everyone involved in the consultation processes should aim higher, based on the most stringent international standards.
Stronger efforts are required to include hard-to-reach sectors of communities, including young people and socially marginalised groups who do not usually participate in mainstream consultation processes, such as online consultation exercises and town hall meetings. In the Arctic, large distances, poor transport links and limited internet access also exclude de facto some groups if consultation methods were originally designed to suit metropolitan areas. Experimentation with new forms of communication (both disseminating information to local people and listening to their views) is necessary to improve the diversity of participants. Informal channels of communication are important in traditional Arctic communities, and decision-makers should integrate these into their evidence-gathering. Decision-makers also need to listen to submissions from local people that do not come in standard written form or resemble technical legal arguments. They might employ local experts to help ‘translate’ traditional forms of communication, such as song and story-telling, into a form that decision-makers can more easily incorporate into their impact assessment processes.
Small, close-knit communities offer strong, supportive environments for people but they can also create the conditions for bullying and social exclusion. We heard that some people feared expressing their views publicly if these went against the majority or influential local leaders. In some cases, it may be necessary to create confidential channels of communication.
Some consultation exercises have also focused on the ‘wrong’ issues, for example, an emphasis on highly technical engineering plans, without answering the questions that matter most to many local people, in particular, the social impacts of projects. Consultation teams need to include a wide range of experts, including sociologists, anthropologists, historians and local experts who can respond to these questions. Companies might also consider bringing in people from other communities who have lived through similar extractive projects to talk about their experiences and the impacts they found most profound or unexpected, both positive and negative.
While in the Arctic it can be difficult to identify who ‘the public’ is in respect of a particular project, there will always be those who live closer to or are more intimately affected by planned activities. Sensitivity is required to prevent well-funded international lobbies (whether for or against extractive activities) to dominate the public debate and ensure priority for local views. Indigenous peoples have specific rights based on their historic sovereignty over their territories that must be understood and respected. Violations of their rights lead to harm to the people concerned as well as lengthy and costly legal challenges.
People do not necessarily have strong views regarding extractive industries, at least not at the early stages of prospecting or exploration, or they may not feel sufficiently well-informed to express their views. However, they do have hopes and expectations for the futures of their communities. Broadening questions beyond those directly connected to a planned extractive project to discuss general visions for community development can be more productive. Instead of asking: “Do you want a mine next door?” one might ask: “What sort of society do you want for your grandchildren?” Creating a shared vision for community development in general puts the community in a stronger position to negotiate with extractive companies and government, as they know what they want before any projects are initiated. Just as importantly, it gives them a vision to work towards even if the proposed extractive activity never reaches the exploitation stage.
Successful extractive projects run for decades. During this time, both the community and the extractive project will evolve. Projects have unanticipated impacts, both positive and negative, and demographics, economy and politics evolve naturally in communities. Consent granted prior to extractive activity may be later withdrawn. On the other hand, many people who initially oppose a development may change their view when they see positive impacts and professional management. Ongoing transparency and two-way communication are key to positive community relations over time.
Everyone with whom we spoke agreed that natural resource development should benefit the communities in which it was situated, and no-one argued for development at any cost in some ill-defined ‘national interest.’ This can only be realised with more effective engagement so that decisions are made based on the most complete information possible, and local people feel that they have control over their own destinies. As Hansen, et al, explain: “while companies can move on to other projects when reserves are exhausted or if mistakes are made, a community generally only has one chance at development of extractives, and therefore it is of utmost importance to get it right the first time.”
 Timo Koivurova and Pamela Lesser, “Environmental Impact Assessment in the Arctic: a Guide to Best Practice” (Edward Elgar: Cheltenham, 2016).
 See, e.g., Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998. Adopted June 25, 1998, entered into force October 30, 2001. United Nations Treaty Series 2161, 447 (Aarhus Convention); International Covenant on Civil and Political Rights 1966. United Nations Treaty Series 999, 171; International Covenant on Economic, Social and Cultural Rights 1966. United Nations Treaty Series 993, 3; ILO Convention 169. (1989). Indigenous and Tribal Peoples Convention. Adopted 27 June 1989, entered into force 5 September 1991. International Legal Materials 28, 1382; UN General Assembly, Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295. September 13, 2007 (UNDRIP); Ruggie, John. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. UN Doc. A/HRC/17/31. March 21, 2011; Ruggie, John. Protect, Respect and Remedy: a Framework for Business and Human Rights. Report of the Special Representative on Human Rights, Transnational Corporations and Other Business Enterprises. UN Doc. A/HRC/8/5. April 7, 2008; OECD. Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector. Geneva: OECD, 2017. https://mneguidelines.oecd.org/stakeholder-engagement-extractive-industries.htm; OECD. Due Diligence Guidance for Responsible Business Conduct. Paris: OECD, 2018. https://www.oecd.org/investment/due-diligence-guidance-for-responsible-business-conduct.htm.
 Anne Merrild Hansen, Frank Vanclay, Peter Croal, and Anna-Sofie Hurup Skjervedal. “Managing the Social Impacts of the Rapidly-Expanding Extractive Industries in Greenland.” The Extractive Industries and Society 3, no. 1 (2016): 25–33, 25. https://doi.org/10.1016/j.exis.2015.11.013.
Rachael Lorna Johnstone is Professor of Law at the University of Akureyri, and Adjunct Professor of Law at Ilisimatusarfik (the University of Greenland). Professor Johnstone specialises in Polar law: the governance of the Arctic and the Antarctic under international and domestic law. In January 2019, she publishedArctic Governance in a Changing World(Rowman and Littlefield 2019) with co-author Mary Durfee, a comprehensive introduction to the Arctic from perspective of international relations, international law, and political economy. She has published widely on the rights of indigenous people; international human rights law; governance of extractive industries in the Arctic; international environmental law; due diligence; state responsibility; and Arctic strategies, including the monograph, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility(Brill 2015). Professor Johnstone is an active member of the International Law Association and two thematic networks of the University of the Arctic: on Arctic Law and on Sustainable Resources and Social Responsibility. She is the deputy member for Iceland on the Social and Human Working Group of the International Arctic Science Committee. She also services on the advisory board of the Polar Research and Policy Initiative, the social sciences and educational sciences expert panel for the national Icelandic Research Fund (Rannís rannsóknasjóður), and the board of the Equality Fund of Iceland under the Parliament of Iceland. Professor Johnstone holds a doctorate in juridical science from the University of Toronto (2004), an M.A. in Polar Law from the University of Akureyri (2014), an LL.M. (magna cum laude) in Legal Theory from the European Academy of Legal Theory (2000) and an LL.B. (Hons) from the University of Glasgow (1999).