The settlement of environmental disputes in the mining sector: an avenue for non-adversarial forms of dispute resolution?

Abstract

Environmental disputes are one of the most critical concerns to developmental processes, particularly in developing economies. In West Africa, disputes associated with mining operations owned by global companies are often triggered by adverse impacts of various extractive processes. This thesis investigates existing environmental dispute resolution processes available to the populations affected by mining operations in West Africa. The research analyses existing international laws and soft-law instruments, such as guiding principles, resolutions and policies that are significant to the mining sector, as well as environmental dispute resolution. It examines the impacts of determinative dispute resolution processes through the courts in relation to environmental disputes. The thesis also examines institutional arrangements regarding environmental dispute resolution and, ultimately, prevention of environmental harm connected with large mining projects—particularly those sponsored by intergovernmental bodies such as the International Finance Corporation. The research critically examines existing precedents and ongoing environmental cases before domestic and international courts. To that end, this research identifies several impediments and legal drawbacks affecting the effective resolution of environmental disputes for the communities impacted by mining activities in West Africa. In this regard, one of the major challenges to providing environmental remedies relates to the weak institutional and legal frameworks of West African countries here studied, especially concerning the resolution of environmental disputes, particularly alternative dispute resolution methods. This thesis proposes the incorporation of non-determinative processes that facilitate increased community participation, provide flexibility in procedures and reduce costs for complainants affected by environmental harm resulting from mining operations in the sub-region. It demonstrates how the application of international soft-law instruments, such as the United Nations Guiding Principles on Business and Human Rights and the Organization for Economic Development Guidelines for Multinational Enterprises on Responsible Business Conduct, can provide guidance for non-determinative dispute resolution processes, thereby contributing to the resolution of environmental disputes. The thesis contends that these alternative processes would serve to mitigate excessive costs to complainants, better protect community rights and offer remedies for individuals and communities affected by environmental damages. An offshoot of this thesis could be the opportunity to streamline regulatory frameworks and integrate alternative dispute resolution processes within the mineral-rich West African region.

Date of Thesis submission	2023
Original language	English
Awarding Institution	Western Sydney University
Supervisor	Beatriz Garcia (Supervisor), Lucy Robinson (Supervisor) & Catherine Renshaw (Supervisor)