Access to Information
The Right of Access to Information Under International Law
The right of access to information is a fundamental human right protected by the right to freedom of expression under Article 13 of the American Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights. Article 11 of the U.N. Declaration on the Rights of Peasants and Other People Working in Rural Areas affirms that States must ensure peasants and people working in rural areas have “relevant, transparent, timely and adequate information in a language and form and through means adequate to their cultural methods” which ensures their effective participation in decision-making in matters which may affect their lives, land, and livelihoods.
In Haiti, major decisions are made behind closed doors in Port-au-Prince. These decisions are made in French rather than in Creole, and far removed from the homes and daily realities of the majority of the rural population marginalized by deep inequalities in income, wealth, and power. This lack of access to information means that communities affected by mining activity are prevented from meaningful participation in decision making.
VCS Mining Company Drill Marker, CaDouch, North Haiti. Photo: Ellie Happel, 2014.
Between 2006 and 2013, the Haitian government issued more than 50 permits to explore for gold mining on land occupied by dozens of communities. In interviews, residents of these communities reported that individuals entered their land, marked their property, and took samples of rock and soil without permission. Several residents reported that they only knew that some type of industrial activity had begun in their community when they saw trucks or helicopters. More information about these interviews and testimonies can be found in Chapter V of Byen Konte, Mal Kalkile? Human Rights and Environmental Risks of Gold Mining in Haiti (pages 199-222).
Farmers and families in rural communities where companies have explored for gold have been systematically excluded from decisions about the mining industry and laws regulating mining activity. Journalists have also been unsuccessful at obtaining information related to the promotion of the mining industry from the government, further compounding overall secrecy around the mining sector.
“When I wrote a story about gold mining, I sent emails, made phone calls, and visited the Ministry of Public Works. I wanted to receive information. All of [my] emails and phone calls went unanswered. We journalists don’t have access to information, which forces us to provide incomplete information [to the public].” – Lafontaine Orvild, Journalist
Haitian social movements and civil society organizations have denounced the lack of transparency surrounding the development of the mining sector. There is concern that violations of the right to information would be exacerbated if a company in fact built a mine and started producing gold. Community members fear that their land may be expropriated and taken without notice, and that they may lose all that they own and toil.
The absence of legal protections for the right to information in Haiti—especially as it pertains to mining—prevents communities from being able to take part in decision-making processes. For more information about how Haiti’s law does not protect the right of access to information, see Legal Context.
In 2015, Haitian communities and international allies brought a complaint before the Inspection Panel of the World Bank. The complaint emphasized the lack of participation of Haitian communities in the process of redrafting Haiti’s mining law. Read more here.
The Escazú Agreement
The Latin American and Caribbean region adopted the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters (known as the Escazú Agreement) in March of 2018. The Escazú Agreement guarantees the right of affected people, particularly the most vulnerable, to access information about and participate in decisions that affect their lives and the environment. Although Haiti has not ratified the Escazú Agreement, as a signatory, Haiti is obligated to not undermine the purpose of the treaty.
Free, Prior, and Informed Consent
The lack of access to adequate information can also violate the principle of Free, Prior and Informed Consent (FPIC). Several mining companies, including Newmont, have publicly committed to upholding the principle of FPIC in its activities. The principle of FPIC requires that impacted communities be involved in decision-making processes regarding mining from a mine’s design phase through its closure. FPIC guarantees communities the opportunity to freely give or withhold their prior and informed consent for a proposed action affecting them or their land and resources.
If community members are not given accurate and sufficient information about mining activities that may take place on their land, informed consent is impossible. One example of company activity conducted without prior and informed consent is the experience of residents in La Montagne in Haiti’s Northwest department.
FPIC processes should be:
Free. The process should be free of coercion, intimidation, or manipulation. Participation should occur through representatives and institutions that are freely chosen by communities.
Prior. Consent should be sought before activities are begun or authorized, as well as throughout the various phases of a project, including assessment, planning, implementation, monitoring, evaluation, and closure. Respect for FPIC requires that communities have adequate time to carry out their own consensus processes before any new activities are undertaken.
Informed. Accurate information must be provided in a form that is accessible and understandable, including to communities with oral traditions. The information provided must address multiple aspects of the proposed project activities—such as the nature, reversibility, size, location, duration, and objectives of the project—and an assessment of its likely economic, social, cultural, and environmental impacts.
KJM Film Screening in the Central Plateau, Haiti. Photo: Ellie Happel, 2014.
Land Access Agreements in La Montagne
From 2009 through 2012, Newmont-Eurasian representatives sought to obtain permission from community members in La Montagne to use their land for mining. However, many who signed or thumb-printed the land access agreements did so without understanding the agreements or without adequate notice of their terms.
Some thought that the agreement would bring future benefits akin to a development project led by a nongovernmental organization. One woman admitted she had no idea what the land access agreement had said.Some residents said they understood that they must sign the agreement to receive compensation for damaged crops, and some stated no one had mentioned that the agreement warned of potential destruction of land. Still one man told GJC that the company had paid him 1000 Haitian Gourdes (approximately $21.40) to affix his thumbprint to the agreement (in lieu of a signature).
"We were in the dark. They took our land and dug on it. They sent a paper to some of us and we did not know what it was. We thought that maybe they sent this paper to people so they could work for the company in the future.”
– Resident of Gode, La Montagne
Many residents stated that if they had known of the agreements’ contents or of the potential environmental impacts that mining exploration activities would have on their land, they would have refused to sign such land access agreements in the first place. [Link to PDF on Case Study: Land Access Agreements in La Montagne]
Land Access Agreement. Photo: Ellie Happel, 2014.
Haitian Advocates Testify about the Lack of Access to Information
The absence of legal protections for the right to information in Haiti—especially as it pertains to mining—hinders the ability of communities to take part in the consulting and decision-making process. As a general matter, Haiti has no law implementing the right of access to information as protected by the right to freedom of expression under Article 13 of the American Convention on Human Rights. There is no administrative procedure that exists to respond to requests for access to information made by Haitian citizens.
The same absence of legal protections applies to the mining sector. Both the governing Mining Decree of 1976 and the Proposed Mining Decree impose sweeping confidentiality requirements that require information provided by companies to the government related to the environmental and social impacts of a mining project to be treated as confidential. Keeping such information confidential prevents affected communities from engaging in meaningful consultation about mining projects and forecloses the possibility of any genuine public debate about the short- and long-term impacts of mining. [Link to Legal and Regulatory Section for more in depth analysis]
Haitian Advocates Testify about the Lack of Access to Information
In March of 2015, the Global Justice Clinic, Kolektif Jistis Min (Justice Mining Collective), and the Megaprojects Observatory testified at a thematic hearing before the Inter-American Commission on Human Rights (IACHR) about the human rights abuses that occur when communities lack access to information and are excluded from decisions about development. The Haitian government failed to appear at the hearing.
In its report about the session, the IACHR found the testimony about the “existing obstacles to the exercise of the right of access to public information” specifically in the context of mining—“troubling.” The Office of the Special Rapporteur for Freedom of Expression called on Haiti to “implement a specific law governing access to information.” Haiti has yet to do so.
Advocates continue to sound the alarm on violations of the right of access to information in Haiti. In a hearing before the IACHR on the impact of extractive industries on human rights and climate change in the Caribbean in October of 2021, activist Samuel Nesner testified on numerous violations of the rights of farmers and communities in Haiti to access information and to participate in decision-making. IACHR Commissioner Margaret May Macauley expressed a strong concern that “there is by and large, a complete lack of prior consultation and information before the majority of these extractive industries commence.”
We have no access to information. I learned on the radio that the government has signed contracts with mining companies. But there is no mechanism in place to inform local people or to let them know how we should react to foreigners coming to mine here.
- Local Authority for Bas de Saint Anne
People should not be impoverished in the name of development; their rights must take precedence over potential profits. Projects such as these, with such a large potential impact on the rights of people living in poverty, must not go ahead without the meaningful participation, consent and involvement of the communit[ies] affected.
– Magdalena Sepulveda, UN Special Rapporteur on Extreme Poverty and Human Rights
