A critical examination of the implementation of the Mining Regulations for mercury use in Small and Medium-Scale Gold Mining in Guyana
Introduction
While mercury use in small and medium-scale gold mining (SMSGM) is legal, the law makes prescriptions to safeguard the environment and public health from its use. Mercury use in practices employed in SMSGM poses a high risk to those directly involved (Taux, Kraus and Kaifie, 2022) and to many who are indirectly exposed to its downstream effects (La Rose, 2019). The Mining (Amendment) Regulations (2005) provide significant guidance on mercury management in SMSGM operations—inclusive of safe mercury use, proper handling and storage—through the Draft Codes of Practice for Mercury Use (2010). These Regulations aim to ‘minimise impacts on workers, communities and the environment through sound mercury management’ in SMSGM (Draft CoPs, 2010, p. 6).
This paper examines the implementation of the Regulations for Mercury Use in Guyana’s SMSGM. It will identify Vancoppenolle et al.’s three fundamental elements of the implementation process. The implementation approach of the Regulations will be analysed using Matland’s (1995) ambiguity and conflict theory to determine whether a top-down or bottom-up approach is more appropriate for the effective implementation of the Regulations. Considering the nature of the mining regulations in Guyana and the dynamics of the sector, the ambiguity and conflict theory allows for unpacking the interplay of various elements that inform the framework for successful implementation. Matland’s theory appears to be an applicable lens through which this study is conducted, as it adequately and sufficiently captures the multidimensional and multicomplex nature of the actors and institutional framework, as well as overarching political, social, economic and cultural nuances for effective implementation.
Fundamental elements of policy implementation
Implementation is essential to policy success. Adopting Vancoppenolle et al. (2015) consideration of the policy implementation process, it is imperative to comprehensively identify and evaluate the current implementation structures, the decision-making process within implementation agencies, and target group behaviour in the implementation framework [of the Regulations for SMSGM].
The existing implementation structure
Mercury use and management in SMSGM have been influenced by three major changes. Before 2011, the mining sector was under the purview of the Office of the President. Since 2011, mining has been under the remit of the Ministry of Natural Resources and the Environment (MNRE). In 2015, the environmental portfolio was moved from MNRE to the Office of the President (NAP, 2021). Through this dichotomy of responsibility, oversight and management of mercury use became shared with multiple actors.
While the Ministry of Natural Resources (MNR) retained overarching responsibility for the natural resources sector, its role is predominantly policy-centric. Currently, the Guyana Geology and Mines Commission (GGMC), the Environmental Protection Agency (EPA) Guyana, and the Pesticides and Toxic Chemicals Control Board (PTCCB) configure the infrastructure that supports the implementation of the Regulations.
Decision-making within implementation agencies
Decision-making within agencies concerns the official authority for making decisions to facilitate practical application (Knill and Tosun, 2020). The semi-autonomous government agencies mandated with implementing the Regulations include:
1. GGMC — the Commission shoulders the responsibility of ‘identifying and recommending individuals or duly registered corporations deemed to have met the criteria to be allowed to import, use and resell mercury’ (MOU, 2019, p. 2). Moreover, it is mandated with oversight of environmental compliance within the mining sector through its Environmental Division.
2. EPA — is responsible for ensuring all measures are taken to minimise the risks mercury exposure poses to human health and the environment (MOU, 2019). With the Agency’s sole responsibility for oversight on the environmental front, the roles of the GGMC and the EPA crosscut and can sometimes generate issues of power disparity regarding which agency takes the lead on monitoring environmental compliance within the mining sector. This raises a question that has yet to be comprehensively answered: which agency’s authority supersedes the other as their functions are both informed by legislation?
3. PTCCB — holds the authority for the issuance of a licence for all pesticides and toxic chemicals imported into Guyana. Acknowledging that mercury is not a prohibited chemical in Guyana, Board’s role in implementation primarily focuses on tracking mercury from the point of entry into Guyana to its final use.
Although these agencies are vested with some amount of decision-making power, they are all under the auspice of a minister, who has veto power in decision-making. While they may be excluded from some decision-making, they are still vested with the powers and authority to implement the decisions and can intentionally and unintentionally stymie the implementation process.
Target group behaviour
The policy issue and solutions are centred around individual miners, mining organisations and mining communities. Miners focus primarily on profitability, productivity, time and labour commitments for their operations. Anecdotal evidence has revealed a high level of conflict regarding buy-in from target groups affected by the mercury use Regulations.
Subsistence miners have been found less compliant and show more infractions of the Regulations. Miners have made complaints ‘that adhering to regulations will lead to a significant increase in costs’ (Guyana Chronicle, 2009, p. 6), which many of them cannot afford—including adherence to environmental regulations for mining, such as the safe and proper use of mercury and retorts.
Conversely, profit-motivated miners, mostly medium-scale miners, see their mining practice as a business and are often more compliant with the Regulations (NAP, 2021). These miners are willing and open to discussions regarding mercury abatement and phase-out. The implementation of the Regulations appears to be much easier for miners who have access to finance and are working as a unit, rather than those who are operating individually, as is the case with small miners.
The implementation model — a hybrid approach
Matland’s (1995) theory analyses ‘the ambiguity and conflict levels of policies... for explaining the implementation process’ (Knill and Tosun, 2020, pp. 9–10). Policy ambiguity speaks to a lack of clarity of goals and means of achieving the [objectives of the Regulations]; while policy conflict alludes to ‘the difference between the favoured outcome of an implementation agency and the expected output’ (Ibid.). The political implementation model of Matland’s classification appears to be the most applicable in the context of the Regulations for Mercury Use and is grounded in and associated with the top-down approach. This is based on the fact that low policy ambiguity and high policy conflict encircle the implementation (Knill and Tosun, 2020).
The goals of the Regulations are relatively incompatible with the immediate needs and self-interested motivation of miners. Miners are required to perform concentrated ore amalgamation, use an approved retort to burn amalgam, and use protective clothing (Draft CoPs, 2010), thereby minimising mercury exposure. This will ensure miners recover residual mercury for reuse, therefore reducing the quantities of mercury used in SMSGM. A baseline assessment conducted during the development of the NAP showed that 52% of the miners, who practised open burning of amalgam, were not compliant with the Regulations, while the other 48% complied to an extent by using retorts, despite inefficient and low recovery rates (NAP, 2021).
Commitments have been made by the government to address mercury use in SMSGM, which are built on well-defined goals of how the Regulations should be implemented and the means required to achieve the goals. However, there is some disparity in the legislation governing SMSGM activities. While the law requires SMSGM operations to always use an approved retort for the burning of amalgam, it does not require the ownership of a retort (NAP, 2021). This leaves a loophole in the legislation with an avenue for redress by a miner, as he or she has no obligation under the law to own a retort and leaves room for non-compliance. This may appear insignificant in the general context; however, non-ownership of a retort may result in the open and unsafe burning of the amalgam, consequently resulting in the exposure of miners to mercury poisoning. Amending the Regulations to clearly state that each miner should own a retort approved by the GGMC would remove ambiguity in this regard. It may be argued that the robust legislative framework governing the mining sector makes the goals and means of implementation clear; however, this can be rebutted on the basis that enforcement of these Regulations is not necessarily as robust as the framework in place (NMSPFA, 2019).
The most preferred outcome of implementation is that the use of mercury in SMSGM will be carried out as per the Regulations and consequently reduced, and the monitoring and enforcement required by the implementing agencies will be conducted efficiently to ensure that the Regulations are implemented as expected. The GGMC may contend that the financial, technical and human resources to support the implementation of the Regulations, through monitoring and surveillance, are inadequate to achieve the objectives set out by the government. This may be attributed to the fact that SMSGM operators are nomadic in nature (NAP, 2021), and therefore the Commission has the near impossible and burdensome task of monitoring every miner to determine the levels of compliance with the Regulations.
Measuring implementation success: formal transposition and practical application
Formal transposition speaks to the detailed requirements of a policy and its integration into the current legal and governmental system (Knill and Tosun, 2020). The Mining (Amendment) Regulations (2005), Regulation 248, stipulated ‘the GGMC prepare CoPs for mining environmental management prior to their incorporation into the Regulations’. Although these draft CoPs for mercury use were established in 2010, they have not been gazetted. Researchers have argued that while this is the case, the CoPs can be considered ‘legally enforceable because they provide details on how the Regulations should be observed’ (Pasha et al. 2017, as cited in NAP, 2021, p. 19). It brings attention to the thought-provoking question: why haven’t these draft CoPs been officially gazetted to erase the doubt of absolute legitimacy and enforceability?
Practical application refers to ‘the actual putting into practice of a policy’ (Knill and Tosun, 2020). This application can be seen in the robust regulatory framework in place to monitor the importation and management of mercury through the MOU (2019) and the establishment of the draft CoPs. Further, Guyana’s obligation under the Minamata Convention on Mercury to reduce mercury use in SMSGM supports the practical application. Ideally, the outcome of practical application would be that SMSGM miners and mining organisations voluntarily comply with the Regulations. However, in reality, some miners are still practising WOA and operating without the use of a retort as stipulated by the Regulations (NAP, 2021).
The Gap — Policy intended outputs vs. the actual outputs
The Regulations are substantiated by the MOU (2019) and the NAP (2021), both of which provide guidance for managing mercury in SMSGM. This is further supported by the practical application—by the GGMC—of the Draft CoPs through monitoring and enforcement. Additionally, the government has also taken steps to ‘develop, sensitise and enforce public and occupational exposure standards — maximum permissible limits — for emissions and releases of mercury in the SMSGM sector and in fish’ (NAP, 2021, p.73)
However, reports have shown mercury pollution of surrounding rivers and creeks and the related negative health impacts in indigenous communities (Papannah and Sutherland, 2021; Watson et al., 2020). Nevertheless, some miners have not been compliant with the Regulations on Mercury Use and the use of a [efficient] retort. Furthermore, miners are required by law to use PPE when engaging in SMSGM; however, these gears attract a ‘13% rate of duty’ (NAP 2021, p. 52), which may also be attributed to non-compliance given the financial costs to miners. Moreover, although WOA is illegal in Guyana, it is still practised by miners who pour mercury into piles of excavated ore and add mercury to the sluice box (NAP, 2021). Although there is a robust regulatory framework with clear goals and objectives in place to govern the SMSGM sector and mercury use, the intended output of the policy implementation has not been fully achieved.
Conclusion
The Mining Act and Regulations are the principal legislative instruments governing the SMSGM sector in Guyana. These instruments are put into effect primarily by the MNR and the GGMC, with support from the EPA and the PTCCB, but the MNR is the only agency with veto power in the decision-making process for the implementation of the Regulations.
By using Matland’s (1995) conflict/ambiguity theory, the hybrid implementation approach of the Regulations for Mercury Use in SMSGM is strongly associated with political implementation. This is supported by evidence of low policy ambiguity and high policy conflict. Implicit in the implementation of the Regulations, the policy outputs are determined by power, which is associated with a top-down approach.
There are existing gaps in the implementation process of the Regulations, which are possibly attributed to the shift in the government’s attention from the mining industry to the oil and gas sector. This creates an apparent conflict between the government and the miners. Support for the successful implementation of the mining regulations can be bequeathed through the Natural Resources Fund under its objective of realising a green economy. The government possesses the capability to pump more funds into the mining sector to reduce the disparity between the expected and actual output of implementation. To further build on implementation, robust oversight and enforcement of the Regulations are required by the implementing agencies to ensure compliance by miners.
References
1. Guyana Chronicle, (2009), ‘GGMC on compliance campaign among medium, small-scale miners’, 6 July, Available at: https://guyanachronicle.com/2009/07/06/ggmc-on-compliance-campaign-among-medium-small-scale-miners/ (Accessed: October 6, 2022).
2. Guyana Geology and Mines Commission (2010) Mining Environmental Management — Codes of Practice — Use of Mercury. Available at: https://www.ggmc.gov.gy/file-download/download/public/440 (Accessed: October 1, 2022).
3. Knill, C, & Tosun, J 2020, Public Policy: A New Introduction, Bloomsbury Publishing Plc, London. Available at: ProQuest Ebook Central. Available at: http://ebookcentral.proquest.com/lib/suss/detail.action?docID=6274048
4. La Rose (2019) ‘All the creeks are polluted. People have a lot more mercury in their system’, Stabroek News, 27 January, Available at: https://www.stabroeknews.com/2019/01/27/news/guyana/all-the-creeks-are-polluted-people-have-a-lot-more-mercury-in-their-system/?fbclid=IwAR1M6kXAhFirIwi7Nu6TYL5w22cjkUkUqWsl0W6dAcMzj86ScEjGT8zSU5I
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8. Papannah, D. & Sutherland, L. (2021) ‘Parabara still in the dark on high mercury exposure’, Stabroek News, 30 May, Available at: https://www.stabroeknews.com/2021/05/30/news/guyana/parabara-still-in-the-dark-on-high-mercury-exposure/ (Accessed: 18 September 2022).
9. Parliament of Guyana (2005) Mining (Amendment) Regulations. Available at: https://parliament.gov.gy/publications/subsidiary-legislation/regulations/mining-amendment-regulation-s-2005 (Accessed: October 1, 2022).
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