Seminar 4 - ASM (artisanal and small-scale miners) - Business and Human Rights Tort

What are ASM? And what 4 types of ASM are there?

Artisanal and small-scale miners (ASM miners) are individuals or small groups involved in labor-intensive mineral extraction using rudimentary techniques and limited machinery. Globally, approximately 80% of these operations work outside of legal and regulatory frameworks.

ASM miners are a diverse group whose work is often deeply rooted in local culture and history. ASM miners are a diverse group whose work is often deeply rooted in local culture and history.

There are 4 types of ASM groups -

1. Ancestral and Traditional Miners: Many ASM miners in regions like Colombia and Peru identify as "ancestral" miners, particularly within Afro-Colombian and Indigenous communities. For these groups, mining is not just an economic activity but a traditional part of their cultural identity and livelihood.

2. Individual and Family Operators: Mining is frequently a family business, sometimes supplemented by other activities like agriculture.

3. Associations and Cooperatives: To increase their bargaining power or gain access to supplies like explosives, many miners form associations, cooperatives, or small enterprises where they pool their labor, tools, and capital.

4. Subsistence Workers: This group includes workers, often women and senior citizens known as chatarreras or barequeras, who make a living by collecting bits of gold-bearing material from the waste or tailings of larger mining operations.

What do ASM do - such as placer mining, and underground mining?

Alluvial & Placer Mining

• Involves extracting gold from riverbeds, stream banks, and loose sediments

• One of the most common methods due to low cost and accessibility

• Does not require heavy machinery or deep excavation

• Common techniques include:

  • Panning – using water and circular motion to separate gold from lighter materials

  • Small-scale dredging – using suction equipment to remove sediment from riverbeds for processing

• Often seasonal and dependent on water availability and river conditions

Underground (Lode) Mining

• Targets gold deposits found in hard rock veins below the surface

• Requires digging vertical shafts, tunnels, and galleries

• Typically limited to shallow depths (10–20 meters) due to high costs and limited technology

• Relies on manual labor and basic tools such as picks, shovels, and simple drilling equipment

• Higher risk compared to surface mining, including tunnel collapses and poor ventilation

What is their general relationship to large scale and formalised mining activity?

• LSM companies offer operating contracts that allow ASM miners to continue working; presented as a solution to conflict. Under GCG’s contracts in Segovia, miners received only 20% of ore at 30% of market value. Miners described themselves as "slaves of the company", yet 70% of GCG's profits came from these contracts.

• Rodríguez-Novoa & Holley examined that ASM can co-exist with LSM, however under two social conditions such as - (1) an organised ASM community which is where ASM miners are organised into cooperatives or associations, the power imbalance with LSM is reduced and meaningful negotiation becomes possible, (2) an independent mediator, they bridge the parties, coexistence typically collapses into latent conflict; especially where government corruption is perceived as high.

Why is the discussion of the relationship between ASM and LSM crucial to Business and Human Rights?

• Under UNGP Pillar II, companies must identify and address adverse human rights impacts along their value chain; ASM miners are directly in that frame.

• Blecher finds that mining companies consistently fail to engage meaningfully with affected rights-holders, generating real legal, financial and reputational risk.

• ASM miners remain structurally invisible in most corporate human rights due diligence practice, despite being among the most affected groups.

What are the legal challenges that ASM face as per McKay?

Focusing on Peruvian ASM as per McKay -

• Miners face prison sentences ranging from 3 to 15 years if they fail to meet formalization deadlines or are linked to illegal mining activities.

• Authorities may perform the seizure and destruction of all equipment and operations associated with the mining site.

• Miners risk incarceration for purchasing necessary materials like explosives on the "black market" due to the difficulty of obtaining formal permits.

• Reporting violence or theft to the police is often avoided because it can alert tax agencies, leading to criminalization over unbalanced financial records.

• Failure to obtain official contracts from concession holders can transition a miner's status from informal to strictly illegal, making their products illicit

What are the 6 livelihood challenges that ASM face as per McKay?

Focusing on the Peruvian ASM, McKay observed that

• Miners and their families live under the constant threat of extortion, death threats, and violence from criminal organizations seeking a portion of their earnings.

• Because formal banks refuse to provide credit due legal and reputational repercussions, miners are forced into dangerous "shadow partner" financing where debt repayment is often enforced through violence.

• The insecurity of mining sites and presence of criminal organisations has led to the militarization of towns, as miners feel compelled to hire private armed security to prevent the theft of their minerals.

• Miners suffer from financial instability caused by illegal groups "cutting" into their high-grade mining areas or stealing extracted ore.

• Even when complying with some trade requirements, miners often work in hazardous conditions with significant risks to their health and safety.

• Miners endure a state of perpetual fear and uncertainty regarding their physical safety and their ability to legally continue their work (McKay)

How can these livelihood and legal challenges that ASM face be resolved?

• Granting Legally Recognised RIghts to Land and Resources (GIZ)

• Eliminating Barriers to the Legal Market - Removing Restrictions (GIZ)

• Implementing cost-effective licensing and ASM supporting operations nationwide similar to a Mining Bank akin to Chile’s ENAMI to provide formal credit (McKay)

• New collaborative arrangements allow ASM miners to operate legally within LSM concessions through formal contracts.

• Ethical initiatives : Alliance for Responsible Mining’s Fairmined certification = support responsible gold production and help miners access international markets.

What are the 3 economic challenges that ASM face as per Echavarria, Perdomo & Furlong and Rodriguez-Novoa and Holley?

1. Informality and Lack of Legal Recognition - 2/3 of mining operations lack legal title, which leads to exclusion from formal economy and this entrenches poverty, this means they cannot scale operations.

2. Displacement and Marginalisation by Large-Scale Mining (LSM) - As per Perdomo and Furlog, the ASM cannot obtain permits, which means they are criminalised or excluded and face a loss of livelihoods, forced movement into less productive or informal spaces.

3. Precarious and Low-Productivity Livelihoods - Rodriguez-Novoa and Holley outlined that ASM livelihoods are based on output-sharing, not wages, which contributes to income instability and low earning.

What are the 3 economic solutions that addresses the struggles ASM face as per Echavarria and Perdomo & Furlong?

1. Formalisation and Legal Recognition - Echavarria outlines that granting mining titles and legal status would improve access to finance, working conditions and stability. These formalisation policies aim to integrate ASM into legal systems and improve livelihoods.

2. Secure Land Rights + ASM–LSM Coexistence Models → Perdomo and Furlong outline that current systems exclude ASM from permits and favour corporations, therefore tecognising ancestral and traditional mining rights and promoting contract mining & ore purchase agreements. Therefore, Coexistence models can reduce conflict and support livelihoods.

3. Access to Finance and Technical Support - Echavarria argues that expanding ASM access to microfinance and banking, paired with providing them with training and technological support would be beneficial to ASM, provided that lack of credit and technical capacity is a major barrier to ASM development.

What are the 3 environmental challenges that ASM face as per Rodriguez-Novoa and Holley?

1. Mercury Pollution and Toxic Contamination → ASM is the largest global source of mercury emissions as per the Minamata Convention, and this mercury contaminates water system and soil and food chains

2. Deforestation and Land Degradation - Often involves clearing forests, excavation of land without restoration and leads to Biodiversity loss, soil erosion and long-term ecosystem damage.

3. Unregulated Waste and Water Pollution - Disposal of tailings and mining waste into rivers, these lack of environmental safeguards is due to informality (Rodrigues-Novoa & Holley)

What are the environmental solutions that addresses the struggles ASM face as per Rodriguez-Novoa and Holley?

1. Improved Waste Management and Land Rehabilitation - Training on waste disposal and land restoration, providing support for cleaner production methods, since the ASM commonly causes pollution and environmental harm due to lack of technical capacity. Helping provide cleaner water systems also reduces the long-term environmental damage.

What is the context and outcome of Vendanta v Lungowe?

Context → KCM owns mines in Zambia (the second largest mines in the world), with the UK-based parent company being Vendanta. Villagers alleged polluted discharge from the exploitation of the mines, leading to the pollution of their water sources, destruction of their crops and severe health issues.

Outcome → Standard negligence principles can be applied to parent and subsidiaries.

The Parent company has a duty of care of its subsidiaries if it -

• Holds itself out in public document 

• Provides policies

• intervenes in the management of the subsidiary's operations

Though the case could have been heard in front of Zambian courts, English courts could hear the claimants because 

• They were too poor to afford legal representation in Zambia

• Zambian legal system lacked the resources to handle such a claim 

Madre de Dios, Peru is an example of ASM - what did this entail? And how does this relate to ASM as a stakeholder?

In Madre de Dios, illegal mining has destroyed 53,000 hectares of Amazon jungle with mercury 
ASM as a stakeholder:  

• Difficulty balancing livelihoods with the negative impacts 

• A World Bank ASM case study revealed flaws in state’s institutional framework, the uncontrolled growth of informal and illegal mining, and the unequal effects this has on women and men

• So, ASM are not just “illegal miners” but people working in an area where the state struggled to provide workable legislation, environmental protection, and inclusion

DRC is an example of cobalt ASM - what did this entail? And how does this relate to ASM as a stakeholder?

• Around 70% of the world’s cobalt originates from DRC (used for batteries)

• Including 15 to 30% produced by ASM → informal, hard to measure and mobile (depending on seasons and prices) 

• 57% of surveyed artisanal miners → victims of exploitation/forced labor (80,000 workers)/child labor

• Heavy metal pollution (2/3 of workers got sick)

• Low wages

Close ties of ASM miners with global market (part of the global supply chain with large scale miners), but still remain legally vulnerable, poorly protected, and associated with labour and human rights concerns