In October 2009, the Mining Law Committee of the International Bar Association launched a project to develop a Model Mining Development Agreement (MMDA) at its annual meeting in Madrid. The MMDA was designed to provide a different starting point for negotiating mining contracts between host governments and mining companies, explicitly based on promoting sustainable social, economic and environmental development through fairer and more transparent mining agreements. Argyle Diamond Mine Participation Agreement: Management Plan AgreementWest Kununurra West Island, Western Australia, Australia, January 1, 2004Link: www.atns.net.au/objects/agreements/argyle%20mp.pdf In Canada, particularly among First Nations, there is extensive experience in developing impact-benefit agreements. Ghana has developed a set of guidelines for CDAs, and there is at least one public agreement. In addition, we strive to include as many copies as possible of actual agreements negotiated in different communities in each language. These studies focus on the need for CDAs to address gender differences caused by mining agreements and the extractive industry. The MMDA is a model of negotiation between the national government of the host country and the mining company. Some articles of mmDA 1.0 refer to community agreements, but mmDA 1.0 itself is not a community development agreement. These are two different instruments that sometimes have to be used together. Howard Mann, IISD`s Senior Advisor on International Law, is leading IISD`s participation in this project as a member of the MMDA`s International Management Committee. He describes the MMDA as a potential game changer that establishes a new paradigm for mining and other commodity projects that puts sustainable development at the forefront of negotiations. “Social, economic and environmental aspects will no longer be complementary if the model prevails.
Rather, they will be an integral part of the negotiating structure and the negotiation process. From economic links with the local community to the protection of human rights, the model covers a wide range of social, economic and environmental issues. Australia has developed a framework for CDAs under the Native Title Act, and there is at least one public agreement. Why agreements matterRio Tinto, March 2016File: Rio Tinto Why agreements matter As highlighted in the first public consultation on MMDA held in Toronto in April 2010, the model recognizes that it is no longer enough to negotiate only mining licences and hard rock royalties. The social exploitation permit must now also be negotiated at the same time as the mining permit. The MMDA sets out a programme for such a negotiation, allowing governments, businesses and stakeholders to identify what might be needed in the specific circumstances of the project in question. The target group of the MMDA is mainly made up of developing countries and mining companies, but also of all actors involved in the mining development process. Therefore, it is thought to be useful to government negotiators, industry, civil society organizations, Indigenous peoples` communities, parliamentarians and others who may be involved in the process. The IBA Mining Law Committee recognizes that appropriate dissemination and capacity building will be required and expects further relationships to be established to this end.
A feature of some community development agreements is the establishment of community foundations. These can also be seen as an alternative to community development agreements. There are many questions about how these foundations are established, their goals and structure. The MMDA is a web-based tool that can respond to different circumstances rather than providing a unified model for everyone. It contains examples of clauses from about 50 important examples of existing mining development agreements for key clauses instead of a single formula. But design goes beyond the search for this flexibility. In fact, much of the value is expected to be found in the table of contents, which contains links to the sample clauses and serves as a menu for the negotiating parties and potentially affected communities to consider when negotiating a mining development agreement. Although not all model clauses are relevant for all situations, together they form and the sample clauses a potential checklist for a negotiating programme and a tool for formulation from a sustainable development perspective. “We intend to produce a non-prescriptive, web-based and widely used resource at the IBA`s annual conference in Vancouver in October 2010 that can lead to informed, transparent and fair negotiations and contractual outcomes. Our vision is that host countries and investors have a common interest in the stability of investment relations and that this stability is best achieved when host countries and regions ensure sustainable and meaningful social and economic development.
The International Bar Association`s Model Mining Development Agreement is not an agreement at the community level, but an agreement between a mining company and a national government. One of the key questions of the MMDA is how such an agreement is linked at national level to an agreement at Community level. Some of the problems are highlighted by these clauses of the MMDA. Guidelines for Best Practices, Flexible and Sustainable AgreementsConclusioned Working Group on Aboriginal Land Settlements, August 2009File: The MMDA project includes the development, production and re-cultivation phases of a mining project, understood as the post-exploration start and feasibility studies that demonstrate the economic and environmental viability of a mine site. It does not cover the exploration phase, although another project may be designed to do so. Memorandum of Understanding between Rio Tinto Exploration Pty Ltd and the Northern Land Council Northern Territory, Australia, 1. December 2001Link: www.atns.net.au/agreement.asp?EntityID=840 Many of the concerns expressed about the clarity, quality and balance of mining agreements are ultimately concerns about the imbalance of resources and capabilities of the parties negotiating the agreements […].