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sharing in governance of extractive industries

How Mongolian herders reached a historic agreement to address grievances with Oyu Tolgoi Gold and Copper Mine: An Interview with Nandia Batsaikhan

Interview by Jasmin Blessing and Sarah Daitch

Nandinchimeg (”Nandia”) Batsaikhan is a Mongolian-based facilitator and mediator who has worked on Compliance Advisory Ombudsman (CAO) cases in Mongolia since 2013. Prior to working for CAO, she worked for Singapore Cooperation Enterprise and the Singapore Polytechnic International, managing the project in Mongolia on the Public and Private Partnership, TVET. Nandia is also a presenter in our webinar about using Social and Environmental Safeguards and Grievance Mechanisms as Tool to Prevent Harm in the Extractive Sector.

What was the impact of the mine on the herders’ livelihood? How did this contribute to conflict? How did the mine affect the territory of the herders, and impact their access to land?

Nomadic herders filed two complaints to CAO[1] in 2012 and 2013. The complainants were concerned about the mine’s use of land and water, which they claimed disrupted their nomadic way of life, and threatened their indigenous culture and livelihood. In the first complaint, the complainants contended that they had not been compensated or relocated appropriately, and they questioned the mine project’s due diligence, particularly around the issue of sustainable water use in an arid area.

In the second complaint, the complainants contended that the river diversion jeopardized their traditional nomadic lifestyle and requested that the Oyu Tolgoi (OT) mine (partly owned by Rio Tinto) stop the river diversion work. Herders were specifically worried that the diversion will lead to several water systems drying up, deteriorated pastureland yields, and diminished water supply to forests and a cultural impact to what they view as a sacred river. Herders also claimed that the mine had created conflict among the herders themselves, as they competed for land and water.

What has caused most tension between the OT mine and affected communities and how did you go about navigating this?

Disputing parties’ different views on the issues around sustainable water use in the Gobi region, pastureland yields, access to water, the mine’s impact on a sacred hill, river and springs, lack of information & communication, distrust and so on - all contributed to the tension between the OT mine and affected communities. The CAO team identified different & shared interests of the parties during its assessment phase. The complainants and OT then agreed to work with the CAO Dispute Resolution team to try to resolve the issues mentioned in the complaints using a collaborative approach. It was a big step for the parties to make this decision to resolve their issues jointly. During CAO’s dispute resolution processes, as a neutral mediator, I convened & facilitated separate and joint meetings with the parties and conducted capacity building training as needed.

What adaptations had to be made to ensure the CAO’s problem solving process fit the Mongolian cultural context?

A team of mediators worked on the two complaint cases in Mongolia. Experienced mediators from Kyrgyzstan and Ukraine significantly contributed in setting up the dialogue platform between the parties, building the capacity of the parties and coaching the local mediators. In my opinion, having a team of mediators, especially engaging local mediators, who speak the same language and understand the local context was an added-value to CAO’s problem solving process.

How did the herders find support to bring their case to the CAO? What helped the herders to become more empowered over time to represent themselves at the dialogue table, considering the power imbalance between local herders and a multi-national mining company?

OT Watch, a national NGO, and Gobi Soil, a local Khanbogd-based NGO provided support to the herders to bring their case to CAO and assisted in exploring the opportunities that were available with CAO. In addition to the capacity building efforts carried out by CAO, OT Watch, The National NGO and Accountability Counsel and international NGOs advised and provided trainings to the elected herders team, (which was representing the larger community) and empowered them through providing advisory services.

How did the formation of the Tripartite Council (TPC) contribute to the success of the negotiations?

During the dispute resolution process, both OT and the elected herders team realized the importance of engaging the local government in the process, as many of the issues required the policy support, endorsement and collaboration of the local government. The formation of the Tripartite Council (TPC) was a big step forward in setting up a permanent & more sustainable dialogue platform between OT, Khanbogd Soum government and the elected herders’ team. As neighbors in the Gobi region they will need to resolve various issues or conflicts or make decisions around working together and implementing joint programs, projects and initiatives. TPC was founded in June, 2015 and it consists of equal numbers of representatives from the local herders, local government and Oyu Tolgoi company.

Was it challenging for the mining company to agree to, and participate in the Joint Fact-Finding Process ? (JFF)

My observation is that not only the mining company but also the other parties understood that many conflicts arise from the different perceptions of the situation. It was difficult for the parties to accept the facts provided by the other party, when the trust level between them was very low. Thus, parties wanted to see a real picture of the situation explored and described by jointly trusted experts. Therefore, it was not challenging for the parties to agree to the JFF process. Independent JFF experts then described the real picture of the situation, which to some extent was challenging for the parties to accept. Based on the JFF findings, experts provided recommendations as options for resolving their issues. Explaining scientific findings in simple language and helping local herders to understand the existing problems was a notable contribution by JFF experts to the Dispute Resolution process.

Could you give us an example of the smaller agreements that were reached as part of the negotiations? And how did you reach agreement on the bigger social and environmental impacts of the mine?

Some agreements reached as part of the negotiations, may seem to be simple but its positive impact on the parties’ future relationship, trust, collaboration and further conflict resolution is significant. For example, the mining company presented an official apology letter to local herders with regards to the Undai River diversion and published it in a local newsletter. In addition, other agreements looked at long-term solutions to address social and environmental impacts of the mine – for example by jointly designing & implementing the Sustainable Livelihoods Program, which consists of 7 projects. More details on the agreements reached by the parties can be viewed from the CAO website at http://www.cao-ombudsman.org/cases/document-links/links-191.aspx. and http://www.cao-ombudsman.org/cases/document-links/links-196.aspx.

The landmark agreement reached in May 2017 is the culmination of many years of negotiations through CAO and is one of the few successful cases of its kind. What are the most important elements of the final agreement and how can you ensure its full implementation?

In my opinion, the most important elements of the final agreements are that parties are exploring more sustainable solutions that can be implemented in the short-term & long-term. In addition, the improved capacity of local herders is key. Lastly, the participatory, flexible, voluntary, interest-based dispute resolution process facilitated by neutral mediators for many years to build a better relationship between parties was crucial. As a neutral mediator, ensuring full implementation of the final agreement is out of my control. Parties own the agreements that they have reached and they are committed to implement them to maintain their relationships and avoid future issues. One of the ways to ensure the implementation of the agreement may be internal monitoring by the parties in the years ahead.

What can we learn from this case about communities holding companies to account? And what can companies learn from how the OT mine navigated the conflict?

(1) Open, active, continued communication matters, (2) Collaboration, time, effort, perseverance invested into the collaboration matters, (3) Consultation, engagement & participation in decision-making matters.

As the mediator in this case, what surprised you most? What did you learn during the dispute resolution process, that you would take into future work?

Everything I did as a mediator for these 2 cases was a learning experience for me. I learned about the dispute resolution process, company-community mediation in complex environments whilst working in the field. Every day of my mediation in the Gobi was a surprise for me, which made my days ahead more interesting but also more challenging. The continued commitments and efforts made by the parties and the patience by each of the individuals engaged in the process are admirable. To witness the positive change in the parties’ relationship along the way was amazing. I truly appreciate and admire what mediators are doing and how they are building consensus all around the world.  

[1] CAO is the independent recourse mechanism for the International Finance Corporation (IFC) and Multilateral Investment Guarantee Agency (MIGA), private sector lending arms of the World Bank Group

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Comment by Roy Jakola on April 13, 2018 at 0:11

A very informative case study, The tripartite format seemed instrumental to demonstrating the balance of interests.

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