10. Access to Remedies – Full Finding

Key message

The government and Baffinland must provide access to remedies for employees and community members whose human rights have been harmed by the Mary River Mine. There are many different mechanisms for individuals and groups to raise their concerns, but the best ones should operate at the mine site and community level and resolve issues through dialogue or mediation.

Overview

Access to remedies is a key component of the international framework for business and human rights. States have an obligation to provide judicial and non-judicial channels for the harms done by companies to human rights. While the rule of law is strong Canada, access to courts and human rights institutions in Nunavut is very difficult due to the barriers of distance, costs and cultural traditions. In a recent report to the legislature in Nunavut, the absence of a human rights commission was highlighted as an important gap in the protection of Nunavummiut.

The Nunavut Land Claims Agreement provides a framework for access to remedies for Inuit, including through the enforcement of the project certificate by the NIRB and the enforcement of the IIBA by the QIA. These mechanisms are best suited for addressing collective issues. Specific concerns of individuals will likely need to be channeled through formal representatives and monitoring groups.

Companies are encouraged to establish operational-level grievance mechanisms in order to respect human rights. These should have credible, effective and culturally appropriate channels for employees and community members to raise concerns and have them taken seriously. This does not mean that every complaint is correct, but there should be a fair, transparent and independent process to investigate and decide upon the issues raised. These mechanisms should support continuous learning and help companies address patterns of complaints.

ArcellorMittal has committed to establishing operational grievance mechanisms for stakeholders in its Human Rights Policy. Baffinland has also committed to establishing a Concerns Procedure for employees in its Human Resources Plan, as well as a Complaints Management Procedure as part of its stakeholder engagement plan. These procedures should be formalized and promoted at the earliest possible stage of the development of the Mary River Mine so that they can begin to address concerns proactively and before they escalate into more serious or formal complaints.

International Legal Standards

Access to remedies is protected by the Universal Declaration of Human Rights, Article 8, as well as the International Covenant on Civil and Political Rights, article 2; the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, General Assembly resolution 40/34, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly resolution 60/147.

The responsibility for States and companies to provide grievance mechanisms for rights-holders is an integral part of the UN "Protect, Respect and Remedy" framework for business and human rights.

The Guiding Principles for Business and Human Rights were recently adopted by the UN Human Rights Council, and contain the following principles related to State-based and company-based grievance mechanisms:

Guiding Principle 26: States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy.

Guiding Principle 27: States should provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.

Guiding Principle 29: To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.

Commentary

Operational-level grievance mechanisms perform two key functions regarding the responsibility of business enterprises to respect human rights.

• First, they support the identification of adverse human rights impacts as a part of an enterprise’s on-going human rights due diligence. They do so by providing a channel for those directly impacted by the enterprise’s operations to raise concerns when they believe they are being or will be adversely impacted. By analyzing trends and patterns in complaints, business enterprises can also identify systemic problems and adapt their practices accordingly

• Second, these mechanisms make it possible for grievances, once identified, to be addressed and for adverse impacts to be remediated early and directly by the business enterprise, thereby preventing harms from compounding and grievances from escalating.

Such mechanisms need not require that a complaint or grievance amount to an alleged human rights abuse before it can be raised, but specifically aim to identify any legitimate concerns of those who may be adversely impacted. If those concerns are not identified and addressed, they may over time escalate into more major disputes and human rights abuses.

General Principle 31: In order to ensure their effectiveness, non-judicial grievance mechanisms, both State- based and non-State-based, should be:

(a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes;
(b) Accessible: being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access;
(c) Predictable: providing a clear and known procedure with an indicative timeframe for each stage, and clarity on the types of process and outcome available and means of monitoring implementation;
(d) Equitable: seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms;
(e) Transparent: keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake;
(f) Rights-compatible: ensuring that outcomes and remedies accord with internationally recognized human rights;
(g) A source of continuous learning: drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms;

Operational-level mechanisms should also be:
(h) Based on engagement and dialogue: consulting the stakeholder groups for whose use they are intended on their design and performance, and focusing on dialogue as the means to address and resolve grievances.

Canadian Legal Standards

Canada has numerous formal judicial and non-judicial mechanisms related to access to remedies. These include:

• The formal court system that operates in all provinces with jurisdiction over criminal, civil and commercial matters.

• Federal and provincial human rights commissions and tribunals that operate in most provinces and territories. However, the absence of a territorial human rights commission was recently highlighted in a report to the Nunavut legislature.

• Federal and provincial labour relations boards and tribunals with powers to investigate and hear complaints about working conditions and collective bargaining.

• Other specialized federal and provincial bodies that investigate and make findings related to specific human rights issues: e.g. Privacy Commissioners.

Internal grievance mechanisms for employees are provided in Canada under federal and provincial labour laws, particularly in relation to mechanisms provided to union members under collective agreements, as well as for raising health and safety concerns through OHS committees.

Company policies and commitments

Arcelor Mittal

Human Rights Policy

6. Implementation

ArcelorMittal will share best practices between our operating units on rights’ based grievance mechanisms, with the aim of establishing effective channels for redress for local stakeholders in relation to this Policy.

External Stakeholder Engagement Procedure

iv) Grievance mechanism
• Establish an accessible grievance mechanism to handle complaints on Company activity in a systematic way and ensure that stakeholders are made aware of it and how it works.
• Ensure that the complainant, or other persons associated with the complaint can seek redress with a guarantee of protection from harassment, prosecution or any other form of reprisal or retaliation.

Baffinland sustainability policy

Section 4.0 – Transparent Governance

• We will take steps to understand, evaluate and manage risks on a continuing basis, including those that impact the environment, employees, contractors, local communities, customers and shareholders.

Section 9.0 – Employee Relations

• A concerns procedure will be developed to allow employees to raise concerns and have their issues addressed in a systematic fashion. The procedure will encourage employees to raise issues that affect them and guarantee responses to the issues in an environment free of threat. Elements of the procedure can be developed with employees as the mine develops. Establishment of employee committees on specific issues or responsibilities will also assist in addressing employee concerns.

Mary River FEIS commitments

Human Resource Management Plan – Appendix

5.2 – Employee Communication

• Baffinland’s HR Department will establish and administer formal and confidential (where necessary) procedures to deal with employee concerns, complaints, grievances, or suggestions. Baffinland will endeavour to resolve conflicts or employee concerns in a prompt and effective manner.

9.1 – Employee Concerns

• A concerns procedure will be developed to allow employees to raise concerns and have their issues addressed in a systematic fashion. The procedure will encourage employees to raise issues that affect them and guarantee responses to the issues in an environment free of threat. Elements of the procedure can be developed with employees as the mine develops. Establishment of employee committees on specific issues or responsibilities will also assist in addressing employee concerns.

Stakeholder Engagement Plan

Section 6.0. – Complaint Management Procedure

• As a means to document, assess, and respond to complaints that may arise, the positions responsible for implementing Baffinland’s complaints management process (see Table 5.1) will take practical measures to address all legitimate complaints to the satisfaction of complainants. The positions identified (i.e., Managers and Baffinland Liaison Officers) are collectively referred to as Complaints Officers (COs).

• It should be recognized that complainants will not distinguish between activities undertaken by Baffinland and its contractors, so all complaints will be directed to Baffinland. It is Baffinland’s responsibility to manage complaints against contractors and construction/operation activities as well as those against Baffinland. The Company can only resolve issues on which it has direct control. For issues outside of Baffinland’s control, the Company will endeavour to facilitate a resolution where possible.

6.1 – Complaints Procedures

Baffinland management will follow these procedures to manage complaints:

• Maintain the identity of all complainants and the complaints they raise as confidential;
• Assign a Complaints Number to all complaints;
• Document all complaints in a Complaints Register;
• Document all verbal complaints on a Complaints Form and indicate that it was submitted verbally;
• Screen out unfounded complaints and address legitimate complaints;
• Prioritize complaints according to magnitude (severity, geographic extent, number of people affected) of effect.
• Notify complainants of the proposed action(s) to rectify the complaint or the reasons why a complaint will not be acted upon;
• Consult with complainant for further explanation on complaint, when necessary;
• Involve organizations and/or community groups, where necessary, to manage complaints (i.e., Hamlets, Qikiqtani Inuit Association);
• Document the action(s) taken to address complaints and the dates when they were both initiated and addressed; and
• Document follow-up action with details including, why the need for follow-up, who will be responsible, what is expected from the follow-up and when follow-up reports are expected.

Examples of the Complaint Action Form, Complaint Follow-up Form and the Complaint Log are found in Appendices 1, 2 and 3.

NIRB Project Certificate

The Project Certificate issued by the NIRB provides an overall monitoring and enforcement framework for the Mary River mine. The Project Certificate was discussed at a workshop held in Iqaluit on December 18-19, 2012. The NIRB made the following points about the Project Certificate in its introductory presentation:

• Where it has been determined that a project should proceed, NIRB must issue a Project Certificate including any terms and conditions which have been accepted or varied by the Minister.

• The terms and conditions of NIRB Project Certificates must be implemented by all government departments and agencies in accordance with their authorities and jurisdictional responsibilities.

• The terms and conditions of NIRB Project Certificates must be incorporated into relevant permits, certificates, licences or other government approvals that the proponent may require.\

• Government departments and agencies shall discuss with NIRB how best to implement the terms and conditions of NIRB Project Certificates and may provide NIRB with drafts of permits, certificates, licences and other government approvals.

• A Project Certificate is a “post-decision” quality control mechanism.
o It allows regulators and the NIRB to revisit the impact predictions and proposed mitigation measures from the EIS to ensure we got it right
o The focus of the Project Certificate terms and conditions can be more global than is generally the case with licences and permits.

• A Project Certificate should:
o Provide the basis for inspection and surveillance
o Provide a mechanism for overall compliance and effects monitoring
o Support adaptive management
o Adopt audit and process evaluation measures

Additional References

ICMM, Human Rights and the Mining and Metals Industry: Handling and Resolving Local Level Concerns and Grievances: http://www.icmm.com/page/15816/human-rights-in-the-mining-metals-sector-handling-and-resolving-local-level-concerns-grievances

Business and Human Rights Resource Centre, web portal on grievance mechanisms: http://www.business-humanrights.org/SpecialRepPortal/Home/Materialsbytopic/Grievancemechanismsnon-judicial

Shift, “Mapping Grievance Mechanisms in the Business and Human Rights Arena”: http://www.shiftproject.org/publication/mapping-grievance-mechanisms-business-and-human-rights-arena

Caroline Rees, “Grievance Mechanisms for Business and Human Rights: Strengths, Weaknesses and Gaps,” Working Paper No. 40 of the Corporate Social Responsibility Initiatives: http://www.hks.harvard.edu/m-rcbg/CSRI/publications/workingpaper_40_Strengths_Weaknesses_Gaps.pdf

IFC Compliance Advisor and Ombudsman, “A Guide to Designing and Implementing Grievance Mechanisms for Development Projects”: http://www.cao-ombudsman.org/howwework/advisor/documents/implemgrieveng.pdf

IFC, “Good Practice Note: Addressing Grievances from Project-Affected Communities”: http://www.ifc.org/wps/wcm/connect/cbe7b18048855348ae6cfe6a6515bb18/IFC%2BGrievance%2BMechanisms.pdf?MOD=AJPERES&CACHEID=cbe7b18048855348ae6cfe6a6515bb18
 

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