Environmental Engineering Reference
In-Depth Information
conflicts arise because these formal regulations and laws do not only legitimise existing
agreements, but also create new obstacles and internal contradictions.
The engagement between different legal systems is important in all three cases. A
lack or inadequacy of national legislation gives rise to informal regulations and more
authority to customary law. In Suriname, the important role of customary law can be
attributed to the inadequacy of the Mining Law for small-scale mining, and its weak
enforcement. Customary lawof theMaroons is not recognised de jure, but in the part of
the national territory where the small-scale gold miners work, it is respected and is the
rule by which the access to the gold is organised. In Colombia, de jure legal pluralism
exists through the recognition of the Afro-Colombian communities, including land
rights (but not rights to the subsoil!). In relation to small-scale mining, however, the
plural system causes confusion because the jurisdictions of the Community Councils
and municipalities are not always respected. In Brazil, the mining and environmental
laws are well developed, but in the Tapajós mining region customary miners' law
continues to be the basis for many agreements, relationships and rules.
These differences become even more visible when we focus on the land rights and
the construction of property. In all three case studies, we have seen that the right to
the gold bearing location and its exploitation is very much defined by tribal or ethnic
claims, and in the case of Brazil, the claimant who discovers the place and the gold. In
Brazil, this traditional ownership is easily changed into official property, legitimised by
federal state legislation. Maroons in Suriname do not have formal land rights, but the
villagers of NieuwKoffiekamp have been in a cat and mouse game with the government
and the licensed large-scale companies for almost thirty years, because it is believed
that relocation of the community will encounter much resistance. The Afro-Colombian
communities present the only example of full de jure land rights, but in practice their
collective decision-making power in relation to small-scale mining is jeopardised by
municipal authorities and individual land owners.
Researching legal pluralism is essential in a project about conflicts in small-scale
gold mining, because formalisation of the activity is often considered the first step
to resolving the many social, economic and environmental conflicts that come with
it. By formalisation we mean the acknowledgement of small-scale gold mining as an
economic activity within the formal laws of a country, which ideally result in improved
monitoring and governance of the sector. What can we conclude with respect to the
effect of engaging legal systems on mining related conflicts? The only case where we
actually see conflicts caused by the operation of different legal systems is Colombia.
The Community Councils, municipal authorities, artisanal miners and mechanised
miners make use of different sets of norms, which may clash and in turn result in social
tensions. In Suriname, the informal respect for customary claims does not resolve the
conflicting interests, but it does help to manage them. In both countries, formalisation
of small-scale gold mining may contribute to the mitigation of some of the conflicts,
especially if it entails a legal order where the specific character of the small-scale mining
communities is addressed. In Brazil, the conflict is not between different systems of
legality, but within the different and contradicting layers of state law. The legal orders
create a complex system of demands, and the small-scale gold miners get trapped in
the bureaucratic mill of the state. The case in the Tapajós region serves as a starting
point for the discussion whether formalisation of small-scale gold mining really is the
way to a conflict-free, sustainable economic activity.
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