For Every Law, a Plan: Overcoming Implementation Gaps to Realize Gender Equality in the Extractive Sector

Our research on gender provisions in the laws, policies, documents, and guidelines of 12 countries revealed nine documents from five countries with provisions with the potential to be gender-responsive—meaning that while they can address the different needs and distribution of benefits, resources, status, and rights to men, women, and gender non-binary people, they do not address the root causes of gender inequality. Additionally, we found two documents that had the potential to be gender-transformative—meaning that they can contribute to the change of norms, cultural values, power structures, and root causes of gender inequalities and discrimination. However, these ambitious goals do not seem to have led to concrete change in most countries.

The implementation gap

Differences between a country’s written rules and actual practice are not unique to gender provisions. Across the world and in many areas of our resource governance work, NRGI has identified “implementation gaps”—the difference between a country’s adopted rules and their actualization.
 
While governing documents aimed at creating gender-transformative change are important, whether they produce the desired outcome may hinge on how well they are implemented in practice. Focus on the impact of a governing document can lead to the conclusion that the law or provision itself is inadequate because it has not led to the desired result, when the actual issue is ineffective implementation.
 
Research shows that a lack of capacity and political will often bring about implementation gaps. The research for this project also suggests that outside forces, such as other countries’ foreign assistance programs or international initiatives such as the Open Government Project or the United Nations Sustainable Development Goals can encourage governments to develop thorough and progressive gender provisions in extractive governance documents. However, without corresponding will and action on the government’s part, or pressure from domestic civil society, few of these provisions take effect.

Recent documents less likely to be implemented

Further, NRGI research from 2019 on sub-Saharan Africa found that legal reforms undertaken before 2000 were more likely to have been implemented by the time of assessment by NRGI’s 2017 Resource Governance Index (RGI) than those undertaken more recently. An obvious explanation for this discrepancy is that authorities have had more time to effectively implement older laws. In addition, new legislation tends to be more ambitious than older documents, which may make it more difficult or time consuming to implement.
 
While our sample of documents is not large enough to draw significant overall conclusions, our research indicates that more recent documents related to gender tend to be far more ambitious than older documents. For example, many older documents include simple, unambitious provisions around limited gender quotas. But all of the documents that had the potential to be gender-responsive were written after 2011 with two documents written in 2018 and 2019 potentially gender-transformative.

Implementation depends on verifiability

How a document is written is not the sole determinant of whether it will create change, and there are ways that framers can create better, more implementable provisions. In particular, documents should contain specific benchmarks and timelines that can be verified. Moreover, documents should designate specific government actors responsible for the implementation and allocate resources for it.

While a document might include an intent to consult women when crafting extractive governance policy, without a requirement for a government or company to provide detail on whom they have consulted, these documents may amount to little more than unfulfilled promises.

Many of the documents reviewed include language that expresses a commitment to some form of action or ambition in relation to gender equality or the rights of women. However, very few contain provisions that can be verified, detail plans for verification or provide enforcement mechanisms. For example, while a document might include an intent to consult women when crafting extractive governance policy, without a requirement for a government or company to provide detail on whom they have consulted, these documents may amount to little more than unfulfilled promises.
 
The gender commitments made in the 30 documents directly related to the extractives sector were divided into three categories—verifiable, partially verifiable and not verifiable. Most documents contained provisions that were only partially verifiable. While some of the provisions were written in ways that allow them to be verified, few documents included actual mechanisms or plans for verification.

Mongolia’s ambitious policies

Of the twelve countries studied, Mongolia was one of the few with a policies that are potentially both gender-transformative and gender-responsive. The RGI has historically shown, however, that Mongolia struggles with a significant gap between its laws and practice. Our research into Mongolia’s gender documents confirmed that the country has highly ambitious documents that it has thus far not been able to implement.
 


To assess the documents’ implementation in a structured way, we broke each down into its component provisions and assessed progress against them.
 
Mongolia’s Geology, Mining, Petroleum and Heavy Industry Sector Gender Responsive Policy Action Plan of Implementation (2019 to 2026) establishes a plan to mainstream gender considerations into extractive sector policy and regulatory planning, budgeting, implementation, and monitoring and evaluation. The policy also aims to reduce gender-based discrimination, minimize the sector’s adverse effects on mining-affected communities, and introduce work-life balance measures to promote women’s equitable participation in extractive-related companies. The policy indicates a gender-responsive approach, in that it specifically addresses access to economic opportunities for women. It provides a multiyear plan that includes budgeting and monitoring, and has the potential to be gender-transformative in that it could directly change economic power structures and address root causes of inequality.
 
Unfortunately, the Mongolian government has yet to implement most of the provisions included in this document. So far, a project funded by Canadian international assistance has completed some of the policy’s requirements for gender assessments of governing documents. However, many of the provisions on training and ensuing activities have been delayed, in large part due to the coronavirus pandemic.
 
A second document from Mongolia, the State Policy on Petroleum Sector Development (2018 to 2027) references gender equality by setting specific goals around improving human resources management and increasing women’s participation by building skills through training and policies encouraging enrollment in professional degrees. It also establishes environmental protection, rehabilitation and local development support by promoting local employment, procurement and infrastructure policies that include women’s economic empowerment. This document also calls for gender-disaggregated data on scholarship recipients, gender-sensitive workplace surveys and plans, and a database to improve human resources management. It also establishes gender auditing and gender-sensitive resettlement planning. Unfortunately, few of the provisions detailed in this document have been implemented. Much of this implementation gap may have to do with the newness of both policies and the effects of the pandemic.
 
The implementation gap for both Mongolian documents may be partly due to the fact that they are policies rather than laws. As frameworks that can be adjudicated, laws are legally enforceable. Policies are generally statements of government priorities and intent, and while they can be impactful and effective tools, they generally lack the weight of law.
 
While there are explanations for the delayed implementation of these two policies—their complexity, that they are new, the delaying effects of the global pandemic and their lack of legal force—the provisions contained in them present a unique opportunity for Mongolians to diminish negative gender-differentiated impacts of extraction and to use their resource wealth to benefit all citizens. Civil society actors, government officials and other stakeholders should continue to monitor and push for implementation of these laws, focusing on the verifiable provision to measure progress.