Engaging Legal Systems in Small-Scale Gold Mining Conflicts in Three South American Countries - Conflicts Over Natural Resources in the Global South - page 131

of most countries and is outside the direct influence of state administrations. In each
of the study sites, Brazil, Colombia and Suriname, national governments encounter
difficulties regulating small-scale gold mining activities within their borders. Conflicts
between different stakeholders form an important obstacle to the effective formulation
and implementation of public policies for the small-scale gold mining sector.
We concentrate on the conflicts that are the result of competing claims made on
the access to gold and its revenues. Legal and political conditions form the root cause
of these conflicts. Barreto (2011) reasons that many of the problems that are usually
ascribed to small-scale mining are actually rooted in the marginalisation of the sector,
itself arising from obstacles to legalisation. Small-scale gold mining communities are
often described as uncontrolled, wild, informal, or even illegal and criminal (Spiegel
and Veiga 2007; Theije and Heemskerk 2009; Tschakert 2009; Sousa et al. 2011).
This, however, does not mean that regulatory legal systems are absent in mining areas.
By contrast, complex sets of laws, rules and regulations exist and function as parallel
legal orders. In the legal anthropological literature, the mixing and mutual influencing
of different legal orders, changing behaviour and thinking is called interlegality (Simon
Thomas 2009).
In this chapter we develop the notion of engaging legal systems to analyse and
compare the circumstances under which legal pluralism causes, helps mitigate or facil-
itates the management of mining-related conflicts. The next section provides theoretical
considerations about legal pluralism and the notion of engaging legal systems. We sub-
sequently analyse the interplay between different legal systems, such as national laws,
unwritten miner's laws and customary community regulations in and around mining
areas, in specific regions of Brazil, Colombia and Suriname. In the last section we will
compare the different study sites and argue that gaining a comparative and deeper
understanding of conflicts and their possible solutions is a precondition for policies
that aim for responsible mining. This discussion is relevant, because legalisation of
small-scale mining is seen as a necessary public policy to enhance the environmental,
economic and social sustainability of the gold mining industry (cf. Barreto 2011).
8.2 ENGAGING LEGAL SYSTEMS
Legal pluralism is defined as the presence of “more than one legal order or mechanism
within one socio-political space, based on different sources of ultimate validity and
maintained by forms of organization other than the state'' (Benda-Beckmann 2002:
37; cf. Griffiths 1986). In discussing small-scale gold mining, we use 'engaging legal
systems' to emphasise that different systems exist and are meaningful for different
groups of people, have authority for different groups of people, stand in relation to one
another, and interact. As we will demonstrate in this chapter, 'engaging' also implies
that these legal systems are in dialogue with each other. Mining-related conflicts can be
caused or mitigated by adopting this dialogue. The different legal orders are usually the
formal legal system of the state, and other - sometimes called informal - orders, such
as customary law, local laws pertaining to specific ethnic groups or religious laws,
or regulations related to specific activities. State law frequently does not formally
recognise the existence of other legal orders, such as customary law or local law. This
type of legal pluralism is called real, factual ( de facto ) legal pluralism (Simon Thomas