London Mining Network – April 6 2022
Catherine Coumans, MiningWatch Canada
All major efforts to create or update standards for the extractive sector – post 2011 – include a requirement that mining companies create project-level grievance mechanisms at their mine sites. Safety First is one example of such a post- 2011 standard set, the Initiative for Responsible Mining Assurance is another and the Responsible Mining Foundation also assesses companies based on having such a project-level mechanism.
Project-level grievance mechanisms are a complaints procedure set up by companies at their project sites where impacted community members can file a complaint and, ideally, receive some form of remedy for the harm they have endured. This is usually separate from internal grievance procedures set up for workers. The essence of these project-level grievance mechanisms is that the people who have been harmed by the operations of a mining company have to file a complaint and go through a procedure, set up by the company who has harmed them, to seek acknowledgement of their harm and remedy for the harm they endured from the same company.
If this sounds problematic, it is important to remember where this requirement for mining companies to create project-level grievance mechanisms comes from.
The primary reason various standards sets have been adding project level grievance mechanisms to the requirements made of mining companies is because the creation of these mechanisms is a key recommendation under the Remedy Pillar in the UN Guiding Principles for Business and Human Rights, that came out in 2011.
So why did John Ruggie and the teams that drafted the UN Guiding Principles come up with a recommendation that companies – the perpetrators of the harms – should become the source of remedy for those harmed? Well, the answer usually given by supporters of project-level grievance mechanisms is that since companies have a responsibility to protect human rights it makes sense that they should also provide remedy when they have harmed human rights or environments where they operate. Logical perhaps, but we have laws and regulations and courts for a reason, because we know that perpetrators of harm are often not inclined to acknowledge the harm they have done, nor provide adequate remedy, without outside enforcement.
And indeed, the drafters of the UN Guiding Principles do clearly set out the duty of governments, states, to protect human rights, including through laws and regulations and rigorous enforcement of these. The UN GPs also recognize that many companies around the world operate with effective impunity, including multinationals, because they operating in areas of weak governance where strong laws either do not exist or are not enforced and where access to judicial remedy through courts is all but impossible for many local people who may be harmed by the operations of corporations. The authors of the UN GPs also recognized that there are not actually any real reasons why the home countries of multinationals could not step up and provide access to remedy for people who have been harmed by one of their companies operating overseas.
The main reason the drafters of the UN GPs came up with the elaborate section under Pillar Three that outlines effectiveness criteria for project-level grievance mechanisms – effectiveness criteria that are referenced in all standards sets that include project level grievance mechanisms – is that Ruggie acknowledged that the only other potential source of remedy in situations of weak governance – if not the companies themselves – would be the home states of multinationals – and Ruggie acknowledged that these would not likely step up to the plate to provide remedy for peoples harmed by their companies in jurisdictions of weak governance overseas.
So, how has this experiment in trying to access remedy for people harmed by mining companies through project-level grievance mechanisms set up by the mining companies themselves turned out in practice? Not well.
I will briefly give you two examples from my work. One is the Porgera Joint Venture mine in the highlands of Papua New Guinea and the other the North Mara Gold mine in Tanzania. Both mines are owned and operated by subsidiaries of Barrick Gold
At both of these mines there were very strong and clear indications, over many years, that private mine security, and police guarding these mines under Memorandums of Understanding, were implicated in ongoing human rights abuses including: beatings, rapes, gang rapes, shootings and killings of local men, women and children. At both mines, after 2011, the company responded by putting in place project-level grievance mechanisms that the company said were compliant with the UN GPs effectiveness criteria. At both mines these PLGMs were used strategically by the company to undermine legal action that was already underway for the victims, in the case of the North Mara mine, and to address imminent legal risk to the company in the Porgera case. At the North Mara mine, mine personnel sought out the clients in the law suit and offered them compensation packages in return for dropping their legal action and required them to sign legal waivers against any future legal action against Barrick or its subsidiaries. At the Porgera mine the company implemented a short term grievance mechanism, narrowly focussed on victims of sexual assault by private mine security and, again, compensation was only provided in return for a legal waiver. At both mines, the company used the project level grievance mechanisms to protect and advance corporate interests to the detriment of the victims of very serious human rights and even criminal abuses caused by the companies’ operations.
I think we need to really question whether various standards that are developed should continue to request that mining companies create project-level grievance mechanisms at their mine sites. If they do, the UN GPs effectiveness criteria are clearly not sufficient to guarantee that these mechanisms will not be abused and even deepen harm experienced by people around mine sites.
At a minimum, criteria for project-level grievance mechanisms need to require that they be functionally fully independent of the mining company – if that is possible. They should be run by a third party that is trusted by the rights holders for whom they are intended. Complainants must be provided the funds necessary to have access to independent forms of support (e.g. legal, technical or medical) in all phases of engagement with the procedures, including during the initial filing of the complaint. Additionally, a settlement through the operational level grievance procedures must not require the complainant(s) to sign legal waivers prohibiting them from civil legal action at a future date.