Friends of the Earth has brought our attention to a rather strange public consultation, this time in rural N. Ireland.

The consultation appears to contradict a key Gunning Principle. Our research on the consultation has highlighted the complexities of the (outdated) Northern Irish legal requirements, versus the (legitimate) expectations of the general public.

The Issue

It relates to gold-mining and the disposal of consequential natural resources, which has the potential to result in community inconvenience and environmental degradation. The Department for the Economy NI proposes to grant Dalradian Gold Limited a prospecting licence in County Tyrone and County Londonderry, and Conroy Gold and Natural Resources plc the same in County Armagh.

Unlike other environmental consultations, receiving a grant for prospecting license requires very little engagement with local communities. This can intensify opposition – that is, if people are even aware a consultation is happening!

The faults

The apparent failures of this consultation seem predominantly to be due to the lack of transparency and information accessible to the public (Gunning two), as well as the amount of time for consideration and response (Gunning three):

– No detail to explain what a prospecting license is
– The failure to host documents in local councils
– Advertising in the wrong local newspapers
– Only one method to respond (No online option!)

The law

As those of you who have attended our training course ‘Law of Consultation’ will be aware, the emphasis of the Principles is on ‘fairness’. The (modest) legal requirements in NI Mineral Development Act 1969 set out the process of informing people of any proposed changes:

“Before exercising with respect to any land the right conferred by paragraph (a) or the power conferred by paragraph (b) of subsection (1), the Ministry shall notify its intention to do so by publishing in two successive weeks in the Belfast Gazette and in one or more than one newspaper circulating in the locality where the land is situated a notice—

(a)stating that the Ministry proposes to exercise the right or power in question;
(b)mentioning the land in relation to which the right or power is proposed to be exercised; and
(c)naming a place or places (including at least one place in the locality) where maps identifying the land are available for inspection at all reasonable hours.”

The law outlines a minor amount of engagement and consultation legally required before the DfE would consider granting a gold prospecting license. It is unclear to the Institute, why the NI law has not been updated in relation to changes in public demand for consultation, as well as reflecting wider European trends and commitments such as the Aarhus Convention.

Question

Has the public been provided with enough information?

The DfE NI website for both companies’ proposals provides the minimum legally required: copies of two press advertisements, half a page of company profile and two maps. Nowhere on the website is the option to view the applications nor even a consultation document. Environmental law tends to be complex and often requires significant public engagement to ensure meaningful consultation. The Gunning Principles set out the legal expectations of what is appropriate consultation. In this respect, does the current public consultation requirements as per the NI Mineral Development Act 1969 reflect the Gunning Principles? The Institute thinks not.

Final thoughts

The Minerals legislation is almost fifty years old. Has consultation and engagement not moved on during this time? Significant improvements to protect the rights of people to receive information, participate and challenge regarding the environment, has enabled the public far more opportunity to become involved in decision-making processes. Is the NI Minerals legislation holding this back?

It seems the question in this case is whether stakeholders in the proposed affected areas received enough timely information for ‘intelligent consideration’? In addition, have they been able to participate meaningfully, with the aim of influencing decision-makers? It would appear not, from a desk assessment.

Therefore, is it time that Northern Ireland updated its legislation, or followed its robust equality legislation and associated guidance with more rigour, or will applicants have to take legal action so that these are tested in Court?