Legal Framework of Environmental and Social Impact Assessment in the Mining Sector

The report analyzes the legal frameworks of 22 IGF member countries, identifying systemic weaknesses in how ESIAs and related plans (ESMPs, closure plans, and RAPs) are used as decision-making tools. Key issues include ambiguity over the rights of exploration permit holders during the transition to exploitation, inadequate sequencing of document submission, and weak monitoring mechanisms. It argues that ESIAs should be capable of leading to project rejection and recommends the use of Strategic Environmental Assessments (SEAs) to identify sensitive areas before exploration permits are granted. The document also highlights the risk of international arbitration arising from these legal ambiguities.

• There is a fundamental conflict between two conceptions of the ESIA's role: one where it is merely a tool to optimize a project's deployment without the option to reject the project, and another where it serves as a genuine decision-making tool that allows the state to refuse development if impacts are unacceptable.
• Legal ambiguity regarding the rights of exploration permit holders during the transition to exploitation can lead to international arbitration. Some laws grant an absolute right to an operating permit regardless of ESIA results, while others only grant a right to apply, creating 'legitimate expectations' that may conflict with environmental protections.
• The absence of Strategic Environmental Assessments (SEAs) leads to high-risk scenarios where exploration permits are granted in sensitive areas, potentially resulting in unrecoverable losses for investors if the project is later rejected based on a project-level ESIA.
• Sequencing of ESIAs and related plans is often inadequate; some jurisdictions allow exploitation permits to be granted before an ESIA is approved, or require closure plans only shortly before the mine is scheduled to close, which contradicts international best practices.
• Financial guarantees for mine closure and rehabilitation are often insufficient or poorly managed. In some cases, guarantees are held in accounts managed by the state rather than third parties, or are based on provisions held by the company itself, increasing the risk of abandoned mines.
• The approval process for ESIAs is undermined by short review timelines and 'automatic approval' clauses, where a project is deemed approved if the administration remains silent for a specified period (ranging from 7 to 90 days).
• Social and economic impacts are frequently under-integrated in ESIAs compared to environmental impacts. Economic analysis is often minimal because ESIA teams typically lack economists, and social monitoring is often less developed in law.
• Local community engagement is often superficial, with consultations sometimes occurring after provisional approval of the ESIA. There is generally a lack of requirement for decision-makers to justify how public concerns influenced the final decision.
• Monitoring and enforcement of ESMPs are ineffective due to a lack of public resources for unannounced inspections and a reliance on the mining companies themselves to fund or lead the monitoring process.
• Sanctions for non-compliance with environmental obligations are often not dissuasive, with some maximum fines in developing countries being as low as approximately USD 2,000, which is disproportionate to the potential environmental damage.

APA

Nikièma, H. S., Bernasconi, N., Brauch, M. D., Mann, H., Naré, C., Ruete, M., Samoura, K., Ouédraogo, L. F., & Ribeiro, D. (2019). Legal Framework of Environmental and Social Impact Assessment in the Mining Sector. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/igf-esia-background-en.pdf

Chicago

Nikièma, H. Suzy, Nathalie Bernasconi, Martin Dietrich Brauch, Howard Mann, Clémence Naré, Marina Ruete, Karim Samoura, Landry F. Ouédraogo, and Deisy Ribeiro. Legal Framework of Environmental and Social Impact Assessment in the Mining Sector. International Institute for Sustainable Development, 2019. https://www.iisd.org/system/files/publications/igf-esia-background-en.pdf.

Wikipedia

{{cite report |last1=Nikièma |first1=H. Suzy |last2=Bernasconi |first2=Nathalie |last3=Brauch |first3=Martin Dietrich |last4=Mann |first4=Howard |last5=Naré |first5=Clémence |last6=Ruete |first6=Marina |last7=Samoura |first7=Karim |last8=Ouédraogo |first8=Landry F. |last9=Ribeiro |first9=Deisy |title=Legal Framework of Environmental and Social Impact Assessment in the Mining Sector |publisher=International Institute for Sustainable Development |date=January 2019 |url=https://www.iisd.org/system/files/publications/igf-esia-background-en.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{nikima2019legal, author = {Nikièma, H. Suzy and Bernasconi, Nathalie and Brauch, Martin Dietrich and Mann, Howard and Naré, Clémence and Ruete, Marina and Samoura, Karim and Ouédraogo, Landry F. and Ribeiro, Deisy}, title = {{Legal Framework of Environmental and Social Impact Assessment in the Mining Sector}}, institution = {International Institute for Sustainable Development}, year = {2019}, month = jan, url = {https://www.iisd.org/system/files/publications/igf-esia-background-en.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }