LEAT Bulyanhulu Complaint Submitted to IFC/MIGA Compliance Advisor/Ombudsman

Compliance Advisor/Ombudsman
2121 Pennsylvania Avenue, NW
Room F5K-292
Washington DC 20433
USA
Fax: 202-522-7400
E-mail: cao-compliance@ifc.org

We Lawyers' Environmental Action Team ("LEAT") lodge a complaint concerning the Bulyanhulu Gold Mine project. This complaint is made on our own behalf and on behalf of our clients, communities of former small-scale miners and landholders of the Bulyanhulu area organized under the Bulyanhulu Small-Scale Gold Miners' Committee ("the Bulyanhulu complainants"). LEAT is a public interest environmental law organization that has been working with and on behalf of the Bulyanhulu complainants. A letter conferring upon LEAT the authority to represent the Bulyanhulu complainants in this complaint is annexed hereto and marked "A" to form part of the complaint.

LEAT and the Bulyanhulu complainants can be contacted through the following addresses, telephone and fax numbers and e-mail:

Mr. Rugemeleza A.K. Nshala
The Lawyers' Environmental Action Team (LEAT)
Mazingira House, Mazingira Street
Mikocheni Area
PO Box 12605
Dar es Salaam
TANZANIA.
Tel: (+255)22-278-0859
Fax: (+255)22-278-0859
E-mail:leat@twiga.com

AND

Mr. Tundu A. Lissu
Institutions and Governance Program
World Resources Institute
10 G Street, NE, Suite 800
Washington DC 20002
Tel: 202-729-7645
Fax: 202-729-7759
E-mail: lissu@wri.org

The basis of the complaint is as follows:

Project Description

The Bulyanhulu Gold Mine in Bulyanhulu area of Kahama District, Shinyanga Region is a large-scale underground gold mine that also produces silver and copper.
The Multilateral Investment Guarantee Agency ("MIGA") is involved with the project through the provision of a political risk guarantee in the sum of United States Dollars 172 million approved in August 2000.
The projector sponsor is Kahama Mining Corporation Limited of Dar es Salaam, Tanzania, which is a wholly-owned subsidiary of Barrick Gold Corporation of Toronto, Canada ("the project sponsors").

Background to the Complaint

The Bulyanhulu complainants formerly lived and worked for gain as small-scale miners, small traders, peasant farmers and livestock keepers in an area called Bulyanhulu in Kahama District, Shinyanga Region in central western Tanzania. However, in September 1994, the project sponsors laid a claim over the Bulyanhulu area on the basis of a license granted by the Government of Tanzania on August 5, 1994, a copy of which is annexed hereto and marked "B" to form part of this complaint.
Relying on this license, the project sponsors caused the Canadian High Commission in Tanzania to put diplomatic pressure on the Tanzanian Government to evict the Bulyanhulu complainants. (The Complainants shall refer to documents obtained from the Canadian Department of Foreign Affairs and International Trade (DFAIT) under the Canadian Access to Information Act and collectively marked "C" in support of this contention.)
The project sponsors also commenced judicial proceedings against the Bulyanhulu complainants in the High Court of Tanzania to have the Bulyanhulu complainants evicted by judicial orders. (Copies of the ruling and order of the High Court of Tanzania in these proceedings is annexed hereto and marked "D" to form part of this complaint.)
Following adverse ruling by the High Court of Tanzania, the project sponsors first appealed to the Court of Appeal of Tanzania (Tanzania's highest appellate court) but later withdrew the appeal and reverted to using diplomatic and administrative pressure to evict the Bulyanhulu complainants. (Copies of an application by the project sponsors' lawyers to the court of Appeal of Tanzania and the corresponding order of the Chief Justice are annexed hereto and collectively marked "E" to form part of this complaint.) The Bulyanhulu complainants shall also make reference to contemporaneous press reports copies of which are annexed hereto and collectively marked "F" to form part of this complaint.
On July 30, 1996, the Tanzanian Government issued orders that the Bulyanhulu complainants should vacate their lands, settlements and property within 24 hours. Paramilitary police units and demolition equipment belonging to the project sponsors and operated by their employees were then stationed in the Bulyanhulu complainants' villages and settlements. The next day the eviction of the Bulyanhulu complainants and the destruction of their settlements and immovable property began and went on for much of August 1996. (See Annexes "C" and "F", and copies of videotapes taken by the project sponsors and the Tanzanian police annexed hereto and collectively marked "G" to form part of this complaint.)
In so doing, the project sponsors and the Government of Tanzania went contrary to the order of the High Court of Tanzania attached hereto and marked "D". The Bulyanhulu complainants shall also refer to official statements of the Tanzanian Government relating to the matters in question annexed hereto and marked "H" to form part of this complaint. The Bulyanhulu complainants shall, in addition refer to project documents prepared by and/or for the project sponsors and submitted to MIGA which are collectively marked "I" in support of this complaint.
The Bulyanhulu complainants were, thus, forced to leave the area and currently live in Kakola Village, Kahama Town, Mwabomba and Kezeria mining areas, all in Kahama District. Those who have remained in the Bulyanhulu area of which Kakola village is part have continued to live in fear of forcible and uncompensated eviction as correspondence between the project sponsors and the Government of Tanzania, and court documents all of which are marked "J" to form part of this complaint show.

The Complaint

The Bulyanhulu complainants have been, are being and/or are likely to be affected by social and environmental impacts of the project in the following ways:

Forced Evictions and Displacement When Project Sponsor Took Control of the Mine Site
1. We believe that potentially hundreds of thousands of the Bulyanhulu complainants were forcibly evicted and displaced from the Bulyanhulu area when the project sponsors illegally and irregularly entered into the Bulyanhulu complainants' lands, settlements and mining areas with the help of the security forces of the Government of Tanzania.
2. We believe that the project sponsors and the Government of Tanzania failed or neglected to plan, finance and implement any resettlement or relocation plan and to provide alternative lands or settlements or alternative sources of livelihoods for the Bulyanhulu complainants.
3. We believe that the project sponsors and the Government of Tanzania failed and/or refused to pay any or adequate, fair, just and prompt compensation for loss of agricultural and grazing lands; destruction of settlements including residential and commercial property; expropriation of mineral rights and investment in mining equipment, machinery and mining shafts; and loss of income generated through employment in small-scale mining operations.
Ongoing Threats of Eviction and Displacement
1. We believe that the project sponsors and the Government of Tanzania have continued to use force or threats of use of force to evict and displace additional numbers of the Bulyanhulu complainants.
2. We believe that the project sponsor and the Government of Tanzania have continued to violate and/or otherwise interfere with the peaceful enjoyment of the property rights of the remaining Bulyanhulu complainants such as by preventing the Bulyanhulu complaints from productively using their agricultural and grazing lands; and prohibiting them from building residential and commercial houses in their existing lands and settlements.
3. We believe that the project sponsors and the Government of Tanzania have failed and/or neglected to pay any or adequate, fair, just and prompt compensation for the violation of, and/or interference with, the peaceful enjoyment of the property rights by the Bulyanhulu.
Negative Impacts on the Economy of the Bulyanhulu Area
1. We believe that the project sponsors destroyed the local economy of the Bulyanhulu area and even beyond, depopulated the Bulyanhulu area and the impoverished the Bulyanhulu complainants as a result of expropriation of agricultural and grazing lands; destruction of residential and commercial property and settlements; expropriation of investment in mining shafts, machinery and equipment and loss of employment opportunities;
2. We believe that the project sponsors failed to provide comparable or better settlements; comparable or better sources of livelihoods in the form of economic activities and employment opportunities for the remaining Bulyanhulu complainants;
3. We believe that the project sponsors' investment does not help the national poverty alleviation efforts by its failure to contribute significantly and fairly to government revenue in the form of taxes, royalties and other charges.
4. We believe that having destroyed employment opportunities that were available prior to their acquisition of the Bulyanhulu area, the project sponsors have failed to create any significant or comparable employment opportunities thereby undermining the national poverty alleviation goals.
Project Sponsors' Failure to Observe Laws of Tanzania in Their Takeover of the Bulyanhulu Mine Site
1. We believe that the project sponsors failed and/or neglected to secure a license that correctly and properly described the area of their concession;
2. We believe that the project sponsors and the Government of Tanzania failed and/or neglected to follow proper procedures to extinguish and/or interfere with the property rights of the Bulyanhulu complainants;
3. We believe that having decided to take the Bulyanhulu complainants to the Tanzanian courts, the project sponsors then failed and/or neglected to abide by the lawful orders and decisions of the Tanzanian courts;
4. We believe that the project sponsors also committed acts or failed and/or neglected to commit acts complained of in paragraphs a-f as stated.
Environmental and Social Impacts Assessments Inaccurate and Inadequate
1. We believe that the project sponsors failed and/or neglected to carry out any environmental impacts assessment studies and processes prior to their entry into and acquisition of the Bulyanhulu area and prior to the eviction and displacement of the Bulyanhulu complainants;
2. We believe that the project sponsors failed and/or neglected to carry out adequate and meaningful consultations with the Bulyanhulu complainants prior to their entry into and acquisition of the Bulyanhulu area;
3. We believe that the project sponsors commissioned, financed, published and submitted to MIGA, the Government of Tanzania and the general public environmental impacts statements, environmental management plan and social development plan that were materially inaccurate; and contained erroneous, false and misleading information and conclusions concerning their acquisition, possession and operation of the Bulyanhulu Gold Mine.
4. We believe that having later decided to make material changes to the design and the implementation of the project, the project sponsors failed to prepare, publish and/or submit to MIGA, the Government of Tanzania and the general public any additional environmental impacts assessment statements and/or environmental management plans concerning any material changes to the design and/or implementation of the project that might have significant environmental impacts to the Bulyanhulu complainants.
Non-Disclosure of Material Information
1. We believe that the project sponsors failed to prepare for, and/or disclose to, MIGA, the Government of Tanzania and the general public all material information as to the facts and circumstances pertaining to the acquisition, possession and operation of the Bulyanhulu Gold Mine including all acts and omissions enumerated in the foregoing paragraphs.
2. We believe that the project sponsors failed to disclose in environmental impacts statements, environmental management plan and social development plan submitted to MIGA, the Government of Tanzania and the general public the existence of the very serious allegations of human rights atrocities implicating the project sponsors and the Government of Tanzania as regards the manner of the project sponsor's acquisition, possession and operation of the project.
3. We believe that the project sponsors failed and/or neglected to disclose and/or to acknowledge in environmental impacts statements, environmental management plan and social development plan the existence of any reports or information concerning any investigations of the allegations of human rights abuses against the Bulyanhulu complainants that may have established the innocence of the project sponsors and the Government of Tanzania.
4. We believe that the project sponsors failed to and/or neglected to disclose to MIGA, the Government of Tanzania and the general public additional environmental impacts statements and/or environmental management plans, if any, concerning any material changes to the design and/or implementation of the project that might have significant environmental impacts to the Bulyanhulu complainants.
MIGA's Inadequate Due Diligence Investigations
1. We believe that MIGA failed to carry out a thorough and competent due diligence investigation pertaining to the facts and circumstances surrounding the project sponsor's acquisition, possession and operation of the Bulyanhulu Gold Mine in order to establish the veracity of the information submitted and soundness of the conclusions drawn by the project sponsors prior to making the decision to provide political risk guarantee for the project.
MIGA's Violation of its Information Disclosure Policies
1. We believe that MIGA failed to prepare and/or disclose to the complainants and other interested parties all material information pertaining to the facts and circumstances surrounding the project sponsor's acquisition, possession and operation of the project in spite of repeated requests from the complainants and other interested parties to do so.

Actions Taken by Complainants

The following actions have been taken by us to try to resolve these issues:
1. We have twice written to His Excellency Benjamin William Mkapa, President of the United Republic of Tanzania on both occasions requesting him and his government to address themselves to these matters and to right any or all of the wrongs that may have been committed against the Bulyanhulu communities; as well as to see to it that any violations of the laws of Tanzania are thoroughly investigated and where, necessary and appropriate, punished in accordance with the laws of Tanzania. Copies of the letters are annexed hereto and collectively marked "K" to form part of this complaint.
2. We have twice written to the Director of Criminal Investigations Department in the Tanzanian Police Force detailing some of the wrongs enumerated herein and requesting him to see to it that these wrongs are thoroughly investigated and, where necessary and appropriate, punished in accordance with the laws of Tanzania. We shall collectively refer to this correspondence as "L" in support of this complaint.
3. We have twice written to MIGA and once to Canada's Export Development Corporation ("EDC") requesting the two institutions to address these issues and to see to it that any/or all wrongs enumerated herein are thoroughly and independently investigated and, where necessary and appropriate, any wrongs righted in accordance with MIGA policies and the regulations governing the EDC. These correspondence is annexed hereto and collectively marked "M" to form part of this complaint.
4. We have also written to the project sponsor requesting to be supplied with copies of relevant reports and the evidence in the project sponsor's possession. See letter to the project sponsors annexed hereto and marked "N" to form part of this complaint.
5. We have met and held discussions pertaining to these issues with officials from MIGA, the World Bank and the EDC; the project sponsors; and with elected and/or appointed officials of the Governments of Tanzania, Canada, the United States, Great Britain and the Netherlands.

Actions Taken by Project Sponsor, MIGA and Government of Tanzania

The following actions have been taken the Project Sponsor, MIGA and the Government of Tanzania in response to the actions of the complainants:

Project Sponsor
1. The Project Sponsor has responded by denying all allegations of wrongdoing on its part.
2. The Project Sponsor has taken steps to level all the areas where alleged human rights abuses took place in what appears to be attempts to destroy any evidence of any wrongdoing on its part.
3. The Project Sponsor has furnished false and/or misleading information as to independent investigations and conclusions therefrom concerning allegations of human rights abuses. We shall refer to correspondence from the project sponsors concerning these matters which is attached hereto and collectively marked "O" to form part of this complaint.
MIGA
1. MIGA has also responded by vigorously defending the Project Sponsor's actions and conduct and denied all allegations of any wrongdoing on its and Project Sponsor's part.
2. MIGA has furnished false and/or misleading information as to independent investigations and the conclusions therefrom concerning allegations of human rights abuses. We shall refer to correspondence and project documents from MIGA which is attached hereto and collectively marked "P" to form part of this complaint.
Government of Tanzania
1. The Government of Tanzania has responded by denying all allegations concerning its own and Project Sponsor's conduct in the acquisition, possession and operation of the Bulyanhulu Gold Mine.
2. The Government of Tanzania has responded by furnishing false, misleading and contradictory information concerning its investigation of the allegations of human rights abuses. We shall refer to official statements from the Government of Tanzania which are annexed hereto and marked "Q" to form part of this complaint.
3. The Government of Tanzania has also taken steps to harass, intimidate and/or threaten the complainants and any other person or persons who have tried to investigate or question the facts and circumstances surrounding the Project Sponsor's acquisition, possession and operation of the Bulyanhulu mine site. The Government actions have included police raids and searches of LEAT offices and the homes of LEAT officers; arrests and detention of LEAT officers and other critics of the Government's handling of the Bulyanhulu evictions and allegations of human rights abuses; and threats to commence criminal prosecutions against the complainants and other persons attempting to investigate and/or question the Government's handling of the evictions and allegations of human rights allegations. We shall refer to contemporaneous press reports which are collectively marked "R" in support of this complaint.
The names of the contact persons at MIGA are:
1. Mr. Gerald T. West
2. Mr. Marcus Williams
3. Ms. Moina Varkie
The following are details of MIGA policies, guidelines or procedures that we believe have not been complied with:
1. Involuntary Resettlement: In order for this project to proceed, hundreds of thousands of people had to be relocated. This was done forcibly and without any resettlement plan. Involuntary resettlement is continuing without any resettlement plan.
2. Environmental Assessment Policy: The Environmental impact assessment processes were carried out after the forced relocation and displacement of the Bulyanhulu complainants and thereby failed to take account of their concerns and interests.
3. Public Consultation: Public consultations were done after the Bulyanhulu complainants had been forcibly evicted and were, therefore, of no meaning to the Bulyanhulu complainants. The consultations were also limited to government functionaries and departments with no or minimal participation by local and national NGOs.
4. Social Safeguard Policy: No social safeguards were taken to deal with the social and economic impacts of the forced relocation of the Bulyanhulu complainants nor have any safeguards been taken to mitigate the continuing negative social and economic impacts the project is having on neighboring communities.
5. Information Disclosure Policy: MIGA has consistently declined requests to disclose to the public any information or documents it may have collected in its due diligence investigation and that it relied upon in making its decision to approve the political risk guarantee for the project.
6. Article 12(d) of MIGA's Convention that states that "in guaranteeing an investment, the Agency shall satisfy itself as to the economic soundness of the investment and its contribution to the development of the host country.
7. Article 12(d) of the MIGA Convention also states that in guaranteeing an investment, the Agency shall satisfy itself as to the "compliance of the investment with the host country's laws and regulations.
We would like to see this complaint resolved in the following way:
1. Full, fair and just compensation should be paid to all Bulyanhulu complainants who were involuntarily resettled without any resettlement plan.
2. Full, fair and just compensation should be paid to all Bulyanhulu complainants whose agricultural and grazing lands were expropriated; residential and commercial property and settlements destroyed; investment in mining shafts, machinery and equipment confiscated; and employment opportunities lost.
3. Full, fair and just compensation should be paid to all remaining Bulyanhulu complainants whose property rights continue to be violated and/or interfered with by the actions of the project sponsors. In the alternative, the project sponsors should desist from any continuing or future acts that violate or otherwise interfere with the enjoyment by the Bulyanhulu complainants of their property rights.
4. The CAO should review MIGA's actual process of due diligence investigation, in order to assess whether MIGA properly investigated the foregoing issues, and whether it took the steps necessary to ensure that this project complied with MIGA policies before it approved the political risk guarantee for the Bulyanhulu Gold Mine.
5. The CAO should review the environmental and social impacts information the project sponsors has submitted to MIGA, and compare it with the information contained in this complaint in order to establish the adequacy and the veracity of the environmental and social impacts information and the soundness of the conclusions drawn in the environmental information submitted to MIGA and the Government of Tanzania.
6. The CAO should investigate the ongoing threats of eviction and displacement, and the negative social and economic impacts the Bulyanhulu mine project is having on neighboring communities.
7. The CAO should assess whether MIGA has complied with its safeguard policies, particularly its policy on involuntary resettlement, and should assess whether or how MIGA's financing of this project advances its poverty alleviation goals.
8. The CAO should review MIGA's compliance with its information disclosure policies in responding to requests for information regarding this project and should direct MIGA to fully disclose all documentation save for that protected by the confidentiality clauses to allow for full public participation in the process of resolving this complaint.
9. The CAO should lend its voice for calls for establishment of an independent commission of inquiry agreeable to the Bulyanhulu complainants as well as to the project sponsors and the Government of Tanzania to independently, transparently and thoroughly inquire into the facts and circumstances pertaining to the acquisition, possession and operation of the project and, where necessary and appropriate, make recommendations for the resolution of this complaint.
10. The CAO should investigate whether MIGA performed proper due diligence prior to its approval of the guarantee with respect to the economic and social benefits accruing to local communities in the Bulyanhulu area and to the Tanzanian national in terms of employment opportunities; and revenue from taxes, royalties and other charges. In addition the CAO should investigate whether MIGA considered in its due diligence investigations any viable alternatives to the project that might have had greater or comparable social and economic benefits but lesser negative impacts.

We are mindful of the fact that Barrick Gold Corporation, the current parent company of the project sponsors, and MIGA did not become directly involved with this project until the spring of 1999 when most of the events complained of had already taken place. We believe, however, that there is a direct relationship between the events of the pre-1999 period and the current mining operations undertaken by the project sponsors at the Bulyanhulu area. There is a direct relationship because those events were a precondition for the development of the project sponsors' current mining operations. The project would not have moved forward without having first to address the issue of the hundreds of thousands of people who were living and working in the disputed area.

We believe that this direct relationship exists regardless of the amount of time that passed between the events complained of on the one hand, and Barrick's and MIGA's involvement in the project on the other hand. This direct relationship also exists regardless of the ownership structure of the project sponsors for the reason that the current owners of the project and MIGA have benefited, are benefiting and will benefit financially from the pre-1999 events complained of. Indeed, we are aware that changes in the ownership structure have not changed the legal personality or identity of the project sponsors.

We, therefore, believe that the circumstances surrounding the pre-1999 events fall within any reasonable definition of the "scope" of the project. Therefore, these events fall within the scope of the due diligence that should have been conducted by both the project sponsors and MIGA. It is our hope that the CAO will share our belief that MIGA's due diligence requirements during project preparation must apply to events that precede its involvement in a given project if those events are directly relevant to the project's development. It is imperative that the World Bank Group not send the message that possible improprieties in project preparation are acceptable provided they occur prior to MIGA's direct involvement or under the ownership of an entity other than the immediate project sponsor.

We have had contact with the following other persons in attempting to resolve these issues:
1. Mr. James Wolfensohn, President of MIGA and the World Bank Group.
2. Mr. Motomichi Ikawa, Executive Vice President of MIGA.
3. Mr. Patrick J. Garver, Executive Vice President and General Counsel, Barrick Gold Corporation.
4. Mr. Pieter Stek, Executive Director of the World Bank representing the Netherlands.
5. Mr. David Herscovitch of the Export Development Corporation of Canada.
6. Ms. Jennifer Rosebrugh of the Department of Foreign Affairs and International Trade of the Government of Canada.
7. Mr. Paul Stothart of the Office of the Minister for International Trade of the Government of Canada.
8. Mr. Jeffrey McLaren of the Canadian High Commission in Tanzania.
9. Hon. Alexa McDonough, Leader of the National Democratic Party in the Canadian House of Commons.
10. Hon. Lincoln Clifford, Member of Parliament in the Canadian House of Commons.
11. Hon. Pierre Paquette, Member of Parliament in the Canadian House of Commons.
12. Mr. William Price of the Department for International Development of the Government of the United Kingdom.
13. Hon. Cynthia McKinney of the House of Representatives in the Congress of the United States.
14. Mr. Hein Copper of the International Financial Institutions Division of the Ministry of Foreign Affairs of the Government of the Netherlands.
Any other relevant facts to support this complaint are as follows:
1. Records of the High Court and the Court of Appeal of Tanzania as regards the judicial proceedings commenced by, and/or involving, the project sponsors and some of the Bulyanhulu complainants prior and subsequent to the project sponsor's acquisition and possession of the Bulyanhulu Gold Mine.
2. Official correspondence between the Bulyanhulu complainants, Tanzanian Government officials and the project sponsors prior to and subsequent to project sponsors' acquisition and possession of the Bulyanhulu Gold Mine.
3. Newspaper accounts pertaining to the facts and circumstances surrounding the project sponsors' acquisition, possession and operation of the Bulyanhulu Gold Mine and particularly in respect of the Bulyanhulu complainants' grievances.
4. Project documents and environmental information in the form of environmental impacts statements, environmental management plan and social development plan commissioned by, prepared for and published by the project sponsors and submitted to MIGA and the Government of Tanzania.
5. Memoranda prepared for and published by the project sponsors as regards the acquisition, possession and operation of the Bulyanhulu Gold Mine.

Dated this 14 day of January, 2002