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  • Methodology

    by: Gabriela Gamez

    channel: Human Rights Assessment

    Methodology

    This section provides information about the methodology of the HRIA of the Mary River mine that has been undertaken in partnership between Lloyd Lipsett, a human rights lawyer, and IsumaTV’s Digital Indigenous Democracy project.

    At the time of writing, the NIRB has decided that a reconsideration process is necessary in order to review the recently-proposed Early Revenue Phase for the mine. Therefore, a full and final assessment of the Mary River mine’s potential human rights impacts cannot be completed until the NIRB reconsideration process has been completed. Consequently, the preliminary information and assessment is presented as an Interim HRIA Report with the objective to contribute to further understanding and dialogue about human rights as the NIRB’s technical review and formal consultations proceed in the fall of 2013.

    Overview of the HRIA

    Human rights impact assessments (HRIAs) are tools that allow stakeholders of a proposed business operation and investment to understand the potential positive and negative impacts in terms of human rights.

    This HRIA examines the Mary River mine and focuses on the potential impacts on Inuit and other individuals as potential employees of the mine; as members of project-affected communities; and, as potential suppliers or business associates of the mine. The HRIA also examines the responsibilities of the government and the Baffinland company to protect, respect and remedy potential human rights impacts, as defined by international human rights law and compared with good practices for the mining industry.

    More specifically, the HRIA’s objectives are:

    • To assess the risks (potential negative impacts) and opportunities (potential positive impacts) for human rights for the Mary River project.

    • To highlight the current gaps between Baffinland’s policies and procedures, as well as the government’s legal and regulatory framework, and current international human rights standards and guidance.

    • To provide additional information and resources about human rights issues. Given that the HRIA is undertaken in collaboration with the Digital Indigenous Democracy project—which features engagement with Inuit in oral Inuktitut through radio and social media—additional information about the views of the affected communities is provided to supplement the on-going formal consultation processes about the proposed mine.

    • To document some baseline human rights information that can contribute to the monitoring, assessment and remediation of actual human rights impacts over the life-span of the Mary River mine.

    To appreciate the relevance and justification of HRIAs for mining projects anywhere in the world, including in Nunavut, it is important to understand that there have been important international developments related to business and human rights over the past six or seven years. When Baffinland began exploration activities related to the Mary River project around 2004, and even when the NIRB began its review process in 2008, there was no clear international consensus about the responsibilities of businesses with respect to human rights; however, it is now impossible to deny that an international consensus exists and is gaining significant momentum.

    The new international consensus about business and human rights is related to the work of John Ruggie in his role as UN Special Representative on Business and Human Rights from 2005 to 2011. The key milestones in his work were the UN Human Rights Council welcoming the Protect, Respect and Remedy Framework in 2008 and endorsing the UN Guiding Principles on Business and Human Rights in 2011. The key points related to the UN Guiding Principles are outlined in the different sections of this report.

    A forward-looking HRIA

    To date, the majority of HRIAs of mining projects have been undertaken after operations have begun—often when human rights violations have been alleged and/or social conflict has emerged. This frequently can result in a degree of tension and suspicion around the HRIA between different stakeholders.

    The HRIA of the Mary River mine was undertaken prior to the approval of the Project Certificate and the construction of the mine (i.e. ex ante rather than ex post assessment).
    Throughout the assessment, stakeholders expressed their points of view, expectations and concerns about future impacts rather than current or historical impacts. Apart from the issue of prior consultation with indigenous peoples, the vast majority of the human rights issues discussed in the HRIA are discussed in a forward-looking manner. Care has been taken to not make allegations about violations of human rights. Rather, the HRIA seeks to identify areas of human rights risk and opportunities for improvements to human rights.

    The working premise of a forward-looking HRIA is that addressing human rights issues proactively and in dialogue with all the relevant parties and stakeholders is the most effective way to prevent negative human rights impacts from occurring in the future.

    Engagement in the NIRB review process

    As the experience demonstrates, ex ante HRIAs can provide some additional advantages to ex post assessments. In particular, this HRIA has benefitted immensely from the opportunity to engage in the formal environmental and social impact review process conducted by the Nunavut Impact Review Board (NIRB).

    As noted in the HRIA timeline, Lloyd Lipsett and Zacharias Kunuk were granted formal intervenor status by the NIRB and participated in their final hearings in Iqaluit, Igloolik and Pond Inlet. This allowed the intervenors to provide observations and recommendations to the NIRB on the record. It also permitted the intervenors to hear the presentations, questions and answers of all the parties and a wide spectrum of stakeholders who participated in the community roundtables. The parties and formal intervenors in the NIRB proceedings provided their information under oath and were subject to questions from the other participants. The proceedings were recorded and a transcript has been prepared. IsumaTV filmed the hearings and excerpts have been uploaded to their website. Engagement in the NIRB review process provided clarification of the detailed technical information about the mine’s plans, as well as to hear the full range of points of view about the proposed mine.

    Using multi-media tools to enhance Inuit information and consultation

    The assessment has been undertaken through a participatory process where all stakeholders were invited to present their views. The HRIA benefited from formal participation in the NIRB public hearings and audio and video clips of these hearings are included as multimedia resources on the HRIA website.

    Given the partnership between the HRIA and Isuma TV’s Digital Indigenous Democracy project, digital media, video and radio was used as much as possible in order to provide information about the Mary River mine and relevant human rights issues, as well as to encourage broad participation in the NIRB public hearings. The basic premise is that audio and video can enhance communication and help respect the language, oral tradition and cultural rights of the Inuit.

    Some of the use of multimedia tools in the conduct of the HRIA include:

    • A series of “inform and consult” radio shows hosted by Lloyd Lipsett and Zacharias Kunuk and featuring presentations by the NIRB, the QIA and various experts and a call-in segment for community members.

    • Video interviews with elders in Igloolik.

    • “My Father’s Land”: multimedia submission by Lloyd Lipsett and Zacharias Kunuk to the NIRB.

    • Filming the public hearings in Iqaluit and Igloolik.

    • Broadcasting the public hearings in Igloolik and Pond Inlet on the community radio and over the Internet.

    • Community radio updates about the public hearings in Iqaluit and Pond Inlet.

    • Video presentation by Zacharias Kunuk for closing remarks at the public hearing in Pond Inlet.

    Many of these multimedia resources are referenced throughout the HRIA. Moreover, the publication of the final HRIA report on the Internet in a multimedia format is designed to enhance the transparency of the assessment’s methodology, findings and recommendations.

    The use of multimedia tools for on-going information and consultation with Inuit communities over the lifespan of the Mary River mine was one of the main recommendations made by Lloyd Lipsett and Zacharias Kunuk in their submissions to the NIRB. The NIRB discussed this in its Final Hearing Report and addressed this with one of the terms and conditions in the Project Certificate. As discussed in the submission to the NIRB hearings, IsumaTV offers its media expertise and network of community media players and radio stations for future efforts to enhance consultation about the mine.

    Rights-based assessment methodologies emphasize the importance of participation of affected stakeholders, as well as transparency and accountability. While this was a limited example, the use of multimedia in the conduct of the assessment was an experiment in ways that stakeholder participation can be enhanced. In the context of Nunavut, the use of audio and video media provided additional possibilities to address the challenges and complexities of translation and respecting the oral tradition and language rights of Inuit.

    At the same time, the accessibility and cost of the necessary Internet technologies remain a barrier to their effective and systematic use throughout Nunavut (and in other indigenous communities). It is hoped that the Mary River mine will contribute directly and indirectly to the development of improved internet services and communications infrastructure in the Baffinland region that will be useful for the mine but also accessible for communities. This can be one of the immediate and lasting benefits as the mine is developed.

    HRIAs and environmental and social impact assessments

    The NIRB review process is focused on the Environmental Impact Statement prepared by the Baffinland company (and now on the Addendum to the Final Environmental Impact Statement for the Early Revenue Phase). These are a very detailed document that contains the company’s policies, management plans and mitigation measures to address risks to the environment and to communities.

    HRIAs have evolved out of the methodologies and established practice for environmental and social impact assessment (ESIA) since the 1970s. However, HRIAs differ from environmental and social impact assessments as they explicitly focus on international human rights standards, and stress the importance of rights-based methodologies for the conduct of the assessment. For instance, many of the issues covered in the FEIS and the Addendum are relevant to human rights, but are not expressed in human rights terms. In particular, the term “human rights” only appears 3 times in the thousands of pages of materials contained in the FEIS.

    Currently, the question seems not whether or not human rights are relevant to ESIAs, but rather whether human rights should be integrated into existing environmental and social assessment and risk management processes, or should be undertaken as “stand-alone” HRIAs.

    This issue is also explored in the recently released (March 2012) guide by the International Council on Mining and Metals entitled “Integrating Human Rights into Corporate Risk Management Processes.” After discussing the necessity for mining companies to consider human rights as part of their risk management processes, including the conduct of ESIAs, the ICMM considers that there are three basic options that can be pursued: (1) build human rights into the ESIA; (2) conduct a separate assessment focused on a particular human rights issue or set of issues that have been identified as significant in previous assessments; or (3) conduct a stand-alone human rights impact assessment (HRIA).

    Going forward, from the perspective of the mining industry, it seems preferable to integrate human rights into ESIAs: “while it is generally preferable that human rights due diligence procedures be integrated into a company’s internal control systems rather than being stand-alone exercises (albeit depending on the project circumstances), the key objectives [for mining companies and industry associations] is to ensure that their risk management frameworks adequately address human rights concerns. With the universal endorsement of the UN Guiding Principles and their mainstreaming into other international and domestic standards, the expectations of adequate human rights due diligence have been clearly established.”

    This approach of including human rights within environmental and social impact assessment processes is also endorsed by ArcellorMittal in its Human Rights Policy, which should be implemented at the Baffinland mine.

    The guidelines for the preparation of the Mary River FEIS precede ArcellorMittal’s Human Rights Policy and some of the international standards about business and human rights; and, therefore, it is understandable that human rights were not addressed more explicitly in the FEIS. Consequently, one of the main recommendations of the HRIA is that Baffinland should implement a formal human rights policy and due diligence measures on a going-forward basis. Similarly, it is recommended that the NIRB include human rights in its project review guidelines for future mining projects in Nunavut so that project developers will address human rights more proactively and explicitly.

    HRIA issues compared to FEIS issues

    As noted above, many human rights issues have been given attention in the NIRB review process implicitly in relation to social, economic, environmental and governance issues discussed in the FEIS, the submission of the various Parties and the NIRB’s Final Hearing Report). However, by applying a human rights lens—including through the application of human rights impact and compliance assessment tools—there are additional issues that merit further attention, including some of which will likely increase in importance when construction and operations begin at the mine.

    Preliminary review of human rights issues and indicators

    The HRIA made use of a number of human rights impact assessment tools to conduct the preliminary analysis of human rights issues and to identify relevant indicators for assessment and monitoring. In particular, the HRIA applied the Danish Institute for Human Rights’ “Human Rights Compliance Assessment Quick Check” tool and Rights & Democracy’s “Getting it Right” guide.

    The following table presents an overview of this part of the HRIA process. Further information about the various human rights issues can be found in the other sections of the HRIA.

    Additional Information and Resources

    Danish Institute for Human Rights “Human Rights Compliance Assessment Quick Check”: http://www.humanrightsbusiness.org/files/Country%20Portal/quick_check_august_2006.pdf

    HRCA Slide Show: http://www.humanrightsbusiness.org/files/HRCA/HRCA%20presentation%20-%20Website%20version%20-%20070513.pdf

    Rights & Democracy “Getting it Right”: http://equalit.ie/content/human-rights-impact-assessment-tool

    IFC Human Rights Impact Assessment and Management: http://www.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/Guide+to+Human+Rights+Impact+Assessment+and+Management

    ICMM, “Integrating Human Rights into Corporate Risk Management Processes”: http://www.icmm.com/page/75929/integrating-human-rights-due-diligence-into-corporate-risk-
     

    08-04-2013

  • Recommendations

    by: Gabriela Gamez

    channel: Human Rights Assessment

    Recommendations

    Given the fact that the NIRB has announced a reconsideration process for the Early Revenue Phase of the Mary River mine, and some of the terms and conditions of the Project Certificate may be modified, it is premature to finalize the assessment for the HRIA. Nonetheless, some preliminary recommendations may be formulated based on the observations to date.

    All mining operations will have impacts on the environment and communities, which can be positive or negative, and which will have implications for human rights. The Mary River mine has extra challenges associated with its operations in the Arctic environment and interaction with Inuit communities. However, there are a number of factors that should contribute the development of the mine in a manner that respects human rights. These include:

    • The strong framework for protection of Inuit rights in the Nunavut Land Claims Agreement, particularly the rigorous environmental and social review process conducted by the NIRB, as well as the requirement that Baffinland negotiates an Inuit Impact Benefit Agreement with the QIA.

    • The preparation of a very detailed Final Environmental Impact Statement and the associated management plans and mitigation measures by Baffinland, including the Addendum for the proposed Early Revenue Phase, which include commitments for adaptive management, environmental protection, human resources, community investments and stakeholder engagement.

    • The involvement of the federal and territorial governments, as well as the Designated Inuit Organizations, in the NIRB process and their on-going role in monitoring and enforcement of the terms and conditions in the Project Certificate.

    • The strong policies and procedures of ArcelorMittal, including a Human Rights Policy, which should be implemented at the Mary River mine.

    • The collaborative spirit of the interaction between Baffinland and the other parties to the NIRB process to date, which bodes well for constructive dialogue and proactive problem-solving for issues that will arise over the lifespan of the mine.

    At this stage, the overall HRIA conclusions and recommendations are also meant to be constructive and forward-looking. They are based on international standards for human rights that are supported by the Government of Canada, mining companies and industry associations. They are meant to ensure that the Mary River mine respects human rights and is a positive example of the contribution of mining to sustainable development in the Arctic region. They highlight areas where existing commitments can be leveraged to ensure positive human rights outcomes.

    1. Baffinland should initiate a human rights due diligence process based on the explicit recognition and implementation of ArcelorMittal’s Human Rights Policy. Baffinland should be commended for its commitment to develop further corporate social responsibility policies and procedures for the Mary River mine (e.g. based on ArcelorMittal’s policies and ISO26000 which includes human rights). This should entail having a more explicit human rights policy; including more attention to human rights issues in on-going environmental and social impact monitoring; as well as a focus on ensuring there are effective grievance mechanisms for workers and communities at the operational level.

    2. All parties should continue their collaborative efforts to support on-going information and consultation with Inuit and other stakeholders. This is a fundamental aspect of respecting human rights and has been a key factor in the current positive assessment of the Mary River project. On-going consultation and stakeholder engagement is complex and efforts should be evaluated from time to time to ensure they are effective. The conditions in the Project Certificate related to consultation should be fully implemented, and every effort to use multimedia options such as community radio and the Internet should be encouraged.

    3. All parties should continue their collaboration about capacity-building for Inuit. There are many potential opportunities for Inuit as individual employees, business partners, but these require an on-going commitment to formal and on-the-job training. Current efforts should be commended and supported for the lifespan of the mine. In addition, local municipalities, the territorial government and Designated Inuit Organizations will require additional capacity to effectively fulfill their roles in monitoring and addressing some of the predictable negative social impacts that mining operations can induce. It will be important to ensure that these front-line organizations have adequate financial and human resources.

    4. All parties should support transparency about the economic benefits of the mine. The Mary River mine will generate billions of dollars in economic benefits through taxes, royalties, community investments and IIBA payments. Transparency for extractive industry payments is the new global standards, supported by the Government of Canada, mining companies and industry associations. Transparency will help ensure greater accountability and public understanding of the positive contributions that the mine can make to Nunavut and local communities.

    5. The Nunavut Impact Review Board should encourage future mining projects to consider international human rights standards as they develop their management plans. Proactive engagement on human rights issues prior to operations is the best way to avoid negative impacts and to ensure that appropriate due diligence mechanisms are integrated into the overall management plans for a mine. Through its project review guidelines, the NIRB has a strategic opportunity to encourage mining companies to address human rights in a proactive manner.
     

    08-04-2013