Engendering regulation of artisanal and small-scale mining: participation, protection and access to justice

Abstract

This article argues that adopting a gender perspective when regulating artisanal and small-scale mining (ASM) is both necessary and achievable. The authors analyse women’s often-ignored needs and experiences as workers, decision-makers and affected community members in the ASM sector. To address these concerns, this article sets out standards for regulating ASM to guarantee women’s access to services and information and women’s decision-making and representation; to address the specific risks women face in the sector; and to provide access to effective remedies. The authors use international instruments to identify good practice benchmarks from which legislators and policymakers can draw. The article also notes where global norms fall short of addressing women’s rights in ASM. Some of the limitations of this approach are also acknowledged, notably the challenge of establishing gender-responsive laws that can be feasibly and effectively implemented. Nonetheless, the proposed approach should be favoured to better respond to the highly masculinised nature of the sector and the differentiated impacts of ASM on men and women while recognising women’s roles as beneficiaries and productive agents of the sector.

Keywords:

• artisanal and small-scale mining (ASM)
• women miners
• women workers
• gender-responsive legislation
• legislative reform
• gender equality
• women’s rights

Acknowledgements

We are very grateful for the insightful suggestions from Prof. Doris Buss and José-Miguel Bello y Villarino on an earlier version of this article. We would also like to thank the two anonymous referees for their detailed and constructive comments. Ramona extends special thanks to her project collaborators, Rapido Social (UTS Faculty of Engineering and Information Technology) and the UTS Center for Connected Intelligence. All remaining errors are our own.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 See e.g. Horowitz, “It Shocks Me”; Buss and Rutherford, “Dangerous Desires”; Lahiri-Dutt, “Digging Women.”

2 International Labour Organization, “Convention Concerning the Employment of Women”; Extractives Industries Transparency Initiative, “EITI and Gender Equality”; United Nations Global Compact Office “Explanatory Note”; United Nations Global Compact Office and UN Women, “Women’s Empowerment Principles.”

3 Hilson and Maconachie, “Formalising Artisanal and Small-Scale Mining,” 443.

4 Vijeyarasa, “Making the Law Work for Women.”

5 Vijeyarasa, “What Is Gender-Responsive Legislation?”

6 Lahiri-Dutt, “Digging Women.”

7 ASM operates in over 80 countries. Buxton, Responding to the Challenge.

8 Ibid., 1. The previous official figures, provided by the International Labour Organization in 1999, estimated at about 10 million the number of artisanal and small-scale miners, including at least 50% women.

9 World Bank, “Artisanal and Small-Scale Mining.”

10 Eftimie et al., Gender Dimensions, 3.

11 Hilson and McQuilken, “Four Decades of Support,” 104.

12 Jenkins, “Women, Mining and Development,” 330.

13 As much as one-third of workers; Hilson, “Small-Scale Mining and Its Socio-Economic Impact,” 6.

14 Ibid., 7.

15 Eftimie et al., Gender Dimensions, 6.

16 See e.g. Hinton, Veiga, and Beinhoff, “Women and Artisanal Mining.”

17 Armah et al., “Working Conditions,” 464.

18 Jenkins, “Women, Mining and Development,” 331.

19 Lahiri-Dutt, “Roles and Status of Women,” 38.

20 Lahiri-Dutt, “Digging Women.”

21 International Labour Organization, “Convention Concerning the Employment of Women.”

22 See e.g. Jenkins, “Women, Mining and Development,” 330.

23 Good practice in legislation includes South Africa, where in 2002 the Mining Charter opened the option for women to work in mines. Mining Weekly, “Socio-Economic Empowerment Charter” (2002). See also article 114 of the Mining Act of the Republic of Uganda, stating that ‘Notwithstanding the provisions of any other law to the contrary, a woman may be employed in any underground work in any mine or in any operation or activity relating to or associated with mining’. Uganda Legal Information Institute, “The Mining Act, 2003.”

24 See e.g. Werthmann, “Working in a Boom-Town.”

25 See e.g. Jenkins, “Women, Mining and Development”; Hinton, Veiga, and Beinhoff, “Women and Artisanal Mining.”

26 Armah et al., “Working Conditions,” 465.

27 Yakovleva, “Perspectives on Female Participation,” 30.

28 For example, women’s work in ASM may in some instances be unpaid and conducted to enhance the earnings of their husband. Hinton, Veiga, and Beinhoff, “Women and Artisanal Mining,” 19.

29 Ibid.; Perks, “Towards a Post-Conflict Transition,” 189.

30 Hinton, Veiga, and Beinhoff, “Women and Artisanal Mining,” 20.

31 Ibid., 13.

32 Hilson and Maconachie, “Formalising Artisanal and Small-Scale Mining,” 443.

33 There is global interest in greater formal regulation of ASM. See e.g. OECD, Responsible Supply Chains of Minerals. To advance this agenda, the ASM Hub was created and gathers OECD and non-OECD governments, the private sector, civil society and other stakeholders to discuss ways to support formalisation efforts. See OECD, “Artisanal and Small-Scale Gold Mining.”

34 See e.g. Geenen, “Relations and Regulations”; Lund, “Twilight Institutions.”

35 Geenen, “Dangerous Bet,” 322.

36 Ibid., 323.

37 Ibid.; Hilson and Maconachie, “Formalising Artisanal and Small-Scale Mining”; Verbrugge, “Economic Logic of Persistent Informality.”

38 Huggins, Buss, and Rutherford, “Cartography of Concern,” 144.

39 African Union, “Africa Mining Vision.”

40 United Nations Environment Programme, “Minamata Convention on Mercury,” annex C 1(i).

41 Ghana Legal, “Small-Scale Gold Mining Law – 1989 (PNDCL 218).”

42 Republic of the Philippines, “An Act Creating a Mining Program.”

43 El Presidente del Congreso de la República, “Ley de Formalización.”

44 DELVE, Report on Artisanal Mining in Africa.

45 Bashwira et al., “Not Only a Man’s World,” 113.

46 Ibid., 114.

47 Jenkins, “Women, Mining and Development,” 330.

48 Lahiri-Dutt, Gendering the Field, 15.

49 Ministère des Mines (DRC), “Ministerial Decree of 29 February 2012,” art 9.

50 On feminist approaches to international law, see Charlesworth, Chinkin, and Wright, “Feminist Approaches to International Law.”

51 Vijeyarasa, “Gender Legislative Index.”

52 Vijeyarasa, “Making the Law Work for Women,” 277.

53 United Nations General Assembly, Convention on the Elimination of Discrimination against Women.

54 Vijeyarasa, “What Is Gender-Responsive Legislation?”

55 Vijeyarasa, “Making the Law Work for Women,” 277.

56 Vijeyarasa, “CEDAW’s General Recommendation No. 35.”

57 Committee on Economic, Social and Cultural Rights, “General Comment No. 14,” para. 12.

58 International Labour Organization, Recommendation Concerning Safety and Health in Mines, para. 25(a).

59 Minerals and Mining Regulations, “Made Under and Pursuant to the Nigerian Minerals.”

60 African Minerals Development Centre, “African Women in Artisanal and Small-Scale Mining,” 2.

61 Hinton, Veiga, and Beinhoff, “Women and Artisanal Mining.”

62 See e.g. Fairtrade International, “Fairtrade Standard for Gold.”

63 CEDAW Committee, “General Recommendation No. 14”; CEDAW Committee, “General Recommendation No. 15.”

64 Eftimie et al., Gender Dimensions, 9.

65 Ibid.

66 Hinton, Veiga, and Beinhoff, “Women and Artisanal Mining,” 25.

67 United Nations, Economic Commission for Africa, and Southern Africa Office, “Harmonization of Mining Policies,” 48.

68 Ibid., 47–8, Recommendation 3.

69 Jenkins, “Women, Mining and Development,” 332.

70 Hinton, Veiga, and Beinhoff, “Women and Artisanal Mining,” 10–1.

71 Ibid., 17.

72 Eftimie et al., Gender Dimensions, 9.

73 Huggins, Buss, and Rutherford, “Cartography of Concern,” 145.

74 Eftimie et al., Gender Dimensions,

75 Weldegiorgis, Lawson, and Verbrugge, Women in Artisanal and Small-Scale Mining, 12.

76 Lahiri-Dutt, Gendering the Field.

77 Jenkins, “Women, Mining and Development,” 331.

78 African Minerals Development Centre, “African Women in Artisanal and Small-Scale Mining,” 3.

79 Jenkins, “Women, Mining and Development,” 336.

80 Kristiansson, “Embedding Gender in the Business,” 35.

81 International Finance Corporation, “IFC Performance Standards,” 13, paras 26–7 and 34, para. 10.

82 OECD, Guidance for Meaningful Stakeholder Engagement, annex C, 100.

83 Ibid., 41, 42, 71.

84 Ibid., 100.

85 Inter-American Commission on Human Rights, “Indigenous Peoples and Natural Resources,” paras 211–2.

86 United Nations General Assembly, “Convention on the Elimination of All Forms of Discrimination,” Art. 5.

87 Parliament of the United Republic of Tanzania, “An Act on the Law on Prospecting for Minerals.”

88 United Nations General Assembly, “Convention on the Elimination of All Forms of Discrimination,” Art. 5.

89 Ibid., Art. 3.

90 Ibid., Art. 4.

91 United Nations, Economic Commission for Africa, and Southern Africa Office, “Harmonization of Mining Policies,” 48, Recommendation 4.

92 OECD, “Guidance for Responsible Supply Chains,” 27.

93 Communities and Small-Scale Mining Africa Initiative, “Yaoundé Vision,” 6.

94 United Nations, Economic Commission for Africa, and Southern Africa Office, “Harmonization of Mining Policies,” 48, Recommendation 5.

95 Ibid., 48, Recommendation 6.

96 OECD, Guidelines for Multinational Enterprises, 39, para. 54.

97 CEDAW Committee, “General Recommendation No. 12”; CEDAW Committee, “General Recommendation No. 15”; CEDAW Committee, “General Recommendation No. 19.”

98 African Commission on Human and Peoples’ Rights, Resolution on the Niamey Declaration, para. 1(j).

99 See also criterion 7 in relation to data collection on violence against women.

100 Inter-American Commission on Human Rights, “Indigenous Peoples, Afro-Descendent Communities,” paras 318–321.

101 Ibid., para. 277.

102 Ibid., para. 307.

103 United Nations, Economic Commission for Africa, and Southern Africa Office, “Harmonization of Mining Policies,” 47; OECD, Guidance for Responsible Supply Chains, 20.

104 CEDAW Committee, “General Recommendation No. 30,” para. 17(c).

105 Autesserre, “Dangerous Tales.”

106 Ibid., 216–7.

107 CEDAW Committee, “General Recommendation No. 33.”

108 Bashwira et al., “Not Only a Man’s World,” 112–3.

109 United Nations, Economic Commission for Africa, and Southern Africa Office, “Harmonization of Mining Policies,” 48, Recommendation 4.

110 CEDAW Committee, “General Recommendation No. 28,” para. 36; Awori et al., “Feminist Approach to the Binding Instrument.”

111 CEDAW Committee, “General Recommendation No. 28,” para. 16(c).

112 Office of the United Nations High Commissioner for Human Rights, “Guiding Principles,” principle 27.

113 CEDAW Committee, “General Recommendation No. 28,” para. 17; Meyersfeld, “Business, Human Rights and Gender,” 210.

114 OECD, Guidance for Meaningful Stakeholder Engagement, annex C, 82; United Nations Global Compact Office, “Explanatory Note,” 3.

115 Hilson, “Small-Scale Mining and Its Socio-Economic Impact,” 4.

116 CEDAW Committee, “General Recommendation No. 9.”

117 CEDAW Committee, “General Recommendation No. 13,” para. 2.

118 CEDAW Committee, “General Recommendation No. 12,” para. 4.

119 OECD, Guidance for Meaningful Stakeholder Engagement, 102.

120 United Nations, Economic Commission for Africa, and Southern Africa Office, “Harmonization of Mining Policies,” 48.

121 Office of the United Nations High Commissioner for Human Rights, “Guiding Principles,” principle 20.

Additional information

Funding

This study was funded by the University of Technology Sydney Faculty of Law Research Seed Grant Scheme.

Notes on contributors

Anaïs Tobalagba

Anaïs Tobalagba is a Doctoral Researcher and Teaching Fellow at the Faculty of Law of the University of Technology Sydney (UTS). Her research focuses on corporations’ human rights responsibilities and their potential to prevent violence against women in business operations. Before commencing her graduate studies at UTS, she managed projects on national implementation of international humanitarian law, certification of conflict minerals, and access to justice for women survivors of conflict-related sexual violence.

Ramona Vijeyarasa

Ramona Vijeyarasa is a leading scholar of gender equality. A Chancellor’s Post-Doctoral Research Fellow in the Faculty of Law at the University of Technology Sydney (UTS), her research has helped shape the field in the areas of migration and trafficking, human rights and international women’s rights. She is the author of Sex, Slavery and the Trafficked Women: Myths and Misconceptions about Trafficking and Its Victims (2015) and more than 20 other peer-reviewed publications on law and gender issues. Prior to joining UTS, she worked for ActionAid International, the International Organisation for Migration in Ukraine and Vietnam, and the Centre for Reproductive Rights in New York and was an NYU International Law and Human Rights Fellow at the International Center for Transitional Justice.