Legal and Regulatory Challenges
Haiti’s weak legal and regulatory framework increases the social, environmental and human rights risks of metal mining. Haitian law does not protect communities that are most directly affected by mining activities and the government is not willing or capable of enforcing the law and monitoring companies.
Current Legal Regime for Mining
The Mining Decree of 1976 – currently governing mining activity– is inconsistent, outdated, and fails to protect the interests of Haitian people or the environment. The Decree prevents the government from disclosing any information provided by the companies about their mining activities, preventing effective public participation. A longer summary of the law’s deficiencies can be found in Chapter V of Byen Konte, Mal Kalkile? Human Rights and Environmental Risks of Gold Mining in Haiti (pages 153-158).
Proposed Mining Law
In 2014, the Haitian government sought assistance from the World Bank and the International Monetary Fund to rewrite its mining law. The Proposed Mining Law was drafted in consultation with the mining companies that hold permits in Haiti, but without input from the Haitian public. The proposed law fails to adequately protect Haitian communities and the environment. It contains sweeping confidentiality provisions and fails to provide guidance on what is required of environmental and social impact assessments. For a further discussion of the proposed legal framework for mining, see this analysis on the Proposed Mining Law.
In 2015, several Haitian civil society organizations filed a complaint to the World Bank Inspection Panel, alleging that the lack of transparency and public participation in the process and the failure to include adequate environmental and social protections in the Proposed Mining Law violated the World Bank’s own policies. In response, the World Bank’s Inspection Panel acknowledged that concerns with the Proposed Mining Law were “serious and legitimate” although it dismissed the complaint on technical grounds.
The Proposed Mining Law was presented before Parliament in 2017, where it remains. Since 2017, Haiti’s Parliament has rarely met. In early 2020, Parliament was dissolved after then President Moïse failed to organize elections.
Environmental and Social Impact Assessments (ESIA)
Governments require companies to submit ESIAs that identify potential environmental and social impacts of a proposed project. ESIAs are critical for identifying risks at an early stage of a project, and should facilitate community participation in decisions related to mining in their area. Without adequate ESIAs, the Haitian government has no way to evaluate the potential environmental and social harms of a mining project, and community members are left without information about a mining company’s plans in their area.
Haitian law requires that companies produce an Environmental Impact Assessment prior to constructing a mine. Human rights law applicable to Haiti requires the state to compel companies to complete participatory assessments and community consultations, as well as require full public disclosures of the impacts of their activities on the community’s environment, health, and human rights. Best practice requires that a company begins ESIAs as early as possible in the life of a project.
No mining company in Haiti has made an ESIA available to the public.
Case Study: Caracol Industrial Park
More than 4000 people in Northeast Haiti were displaced almost overnight for the development of the Caracol Industrial Park (CIP). Constructed in January 2011, the park was pitched as post-earthquake aid and received significant financial support from the Inter-American Development Bank (IDB) and the U.S. Agency for International Development (USAID). The pre-feasibility assessment had failed to report that the CIP site was the most fertile land in the area and was relied upon as a source of livelihood for hundreds of farmers and their families. An ESIA was conducted only after thousands of people were displaced. The construction of the CIP caused food and financial insecurity, leaving many families unable to meet their basic needs and aggravating Haiti’s high levels of food insecurity. The CIP industrial park serves as a warning of the dangers of not conducting adequate Environmental and Social Impact Assessments (ESIAs).
Community Meeting in Cadouche, Haiti. Photo: Ellie Happel, 2013.
Enforcement Capacity
As a result of decades of foreign intervention, a “republic of NGOs” has been created in the place of strong Haitian institutions. Haiti lacks the institutional capacity and resources to regulate mining and enforce its laws Chronic under-resourcing of government agencies and a lack of functioning democratic institutions has created years of deadlock in Haiti’s government and delays in the development of private and public projects.
The Bureau des Mines et de l’Énergie (Bureau of Mines and Energy, or BME) has reported that its office does not have the expertise and resources to adequately monitor mining company activities.
The Bureau National d'Évaluation Environnementale (BNEE), the agency within the Ministry of Environment responsible for ESIAs, has stated that it lacks the resources to conduct public hearings or to independently travel to proposed mining sites.
Haiti’s disempowered and politicized judiciary fails to protect the rights of Haitians. There are few courts outside of major cities and the courts that do exist in rural areas are under-resourced leading to widespread closures.
Widespread corruption further compounds enforcement challenges.
“We do not have a state that can defend us or regulate the companies.”
- Sabine Lamour, Sociologist and coordinator of feminist organization, Solidarite Fanm Ayisyèn (SOFA)