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  • Human Rights Assessment

    by: Gabriela Gamez

    channel: Inuit Rights to Consultation and Consent – Summary

    5. Inuit Rights to Consultation and Consent – Full Finding

    Key message

    On-going consultation with Inuit and other stakeholders is a critical component of respecting human rights. The concept of Free, Prior and Informed Consent (FPIC) has not been formally recognized in Canadian law or in the corporate policies of Baffinland and its parent companies. However, there is a strong legal framework for consultation with Inuit in Nunavut. Inuit rights have largely been protected to date as a result of the requirements of the Canadian Constitution and the Nunavut Lands Claim Agreement. A key aspect has been the impact review process by the Nunavut Impact Review Board that provided a process for informed discussion and community input. The requirement for Baffinland to negotiate an Inuit Impact Benefit Agreement with the Qikiqtani Inuit Association also provides a process for Inuit to provide their consent about how the mine will be developed.

    International standards for consultation with Inuit

    Consultation is a fundamental human rights principle and a leading indicator for respecting a wide range of human rights. In addition, free, prior and informed consultation and consent are fundamental components of indigenous peoples rights, including their right to self-determination and their right to participate in the exploration and exploitation of natural resources on their lands and territories.

    Principles relating to good faith consultation with indigenous peoples have been a feature of international law and policy for many years. However, since the adoption of the United Nations Declaration of the Rights of Indigenous Peoples in 2007, the principle of free, prior and informed consent (FPIC) is increasingly recognized by governments and business enterprises as an emerging international standard. For instance, the International Finance Corporation’s Performance Standards (governing private-sector loans from the International Finance Corporation and Equator Principles banks) were revised in 2011 to make explicit reference to FPIC.

    Recent and convergent interpretations of international law suggest that FPIC does not necessarily require unanimous consensus, but also that majority support may also not be adequate in some circumstances. FPIC does not give indigenous peoples a veto, but they also have “the right not to consent to extracting resources as an exercise of their sovereignty.” There are some situations in which it may be mandatory to obtain indigenous peoples’ consent (e.g. in the case of forced relocation); other situations where the context may require consent (e.g. where there are impacts on cultural heritage); and, other situations where the requirement of consent is set out in treaties with indigenous peoples.

    Free, Prior and Informed Consent in Canada

    As a distinctive legal concept and international standard, FPIC finds its main expression in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Canada initially voted against the UNDRIP at the UN General Assembly, citing concerns about FPIC being used as a veto (amongst other concerns). However, Canada later endorsed the UNDRIP through a Statement of Support issued in November 2010, stating: “[w]e are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework. 

    It should be highlighted that these international standards containing the principle of FPIC are not legally binding upon Canada: the UNDRIP is a Declaration rather than an international treaty that Canada has signed and ratified; and, the IFC Performance Standards are binding on companies, through the terms of their project financing, rather than on governments.

    Therefore, while Canada recognizes and supports the principle of FPIC at an international level, it is necessary to look at how analogous concepts have been embedded in Canadian laws and policies. There are important legal protections for aboriginal peoples rights in Canada, including with respect to the Crown’s “duty to consult and accommodate” that is contained in section 35 of the Constitution and the well-developed constitutional common law jurisprudence of Canadian courts.

    Beginning with a series of Supreme Court of Canada decisions in 2004 and 2005, it has been clarified that the Crown has a duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might have adverse impacts on aboriginal or treaty rights. The duty to consult and accommodate is a key part of preserving the “honour of the Crown” and fulfilling the objective of reconciliation between the Crown and Aboriginal peoples other societal interests. The federal government has published aboriginal consultation and accommodation guidelines that include a series of guiding principles and consultation directives, a step-by-step guide and a discussion of the roles and responsibilities of different actors: federal departments, agencies and boards; provinces and territories; project proponents; and, aboriginal groups.

    As was stated in a recent legal article, “[a]lthough FPIC and the Canadian duty to consult originate from different sources and use different language, they have both evolved in such a way that they reach the same results in practice. If the Canadian government abides by its Constitution and the Indian Act, and meets the criteria for consultation established [by the Supreme Court of Canada], it will, in most cases, fulfill the requirements for FPIC in international law.”

    Free, prior and informed consent in Nunavut

    For the purposes of a discussion about FPIC in Nunavut, the constitutional common law “duty to consult and accommodate” in Canada provides an important backdrop; however, it is also important to examine the terms of the Nunavut Land Claims Agreement. In the context of resource development on Inuit lands, the NLCA is a modern land claims agreement that provides a number of institutions and mechanisms that help fulfill the requirements of FPIC, notably through the creation of the Nunavut Impact Review Board (NIRB) and the requirement that major development projects cannot commence without the negotiation of an Inuit Impact Benefit Agreements (IIBA).

    Public consultation with Inuit (and other stakeholders) is part of the requirements for the review of the ecosystemic and socio-economic impacts of project proposals by the NIRB in accordance with Article 12 of the NLCA. The NIRB is an institution of public government whose members are responsible for its operations; and, a plurality of NIRB members are nominated by Designated Inuit Organizations (DIOs). The NIRB has developed rules of procedure and procedural guides to govern consultation with Inuit and the general public about proposed projects in Nunavut.

    As discussed below, the NIRB conducted a detailed review process for the Mary River Project for more than four years, with numerous opportunities for formal and informal consultation. This included the participation of Baffinland, various federal and territorial government departments and DIOs as formal Parties throughout the entire review process. There were opportunities for public consultation, notably at a series of public hearings in July 2012 that also included community roundtables. Lloyd Lipsett and Dr. Zacharias Kunuk were granted formal intervenor status for these public hearings, and made submissions about the importance of addressing the human rights impacts of the Mary River Project. Furthermore, the NIRB Final Hearing Report contains a number of specific recommendations, terms and conditions for on-going consultation with respect to different aspects of the project; in addition, the report underscores the voluntary commitments that Baffinland made with respect to consultation during the public hearings.

    In terms of consent, Article 26 of the NLCA stipulates that no “Major Development Project” may commence until an Inuit Impact and Benefit Agreement is finalized. This means that, in Nunavut, there is a requirement that a certain form of consent is obtained from the relevant DIOs through the IIBA negotiation process. In addition, the NCLA includes a list of topics that are appropriate for IIBA negotiations, many of which are relevant to the protection and promotion of Inuit collective and individual human rights.

    Not only is this legal provision significant in ensuring the consultation and consent of Inuit, it also entrenches the good practice of obtaining and documenting FPIC through impact benefit and other agreements. Furthermore, as the IIBA can be enforced according to the common law of contract (according to Article 26.9.1), the relevant Designated Inuit Organization has an additional mechanism to ensure that project proponent lives up to its commitments.

    According to the most recent reports, the Qikiqtani Inuit Association and Baffinland are in advanced negotiations about the terms of an IIBA. At this stage, the terms of the IIBA are confidential. In 2009, the QIA and Baffinland negotiated a Memorandum of Understanding (MOU) that deals with some of the matters that may covered by an IIBA.

    What is Baffinland doing to respect Inuit rights to consultation?

    According to international human rights standards, governments have the primary duty to protect indigenous peoples rights to consultation, consent and participation. However, businesses also have a responsibility to respect these rights as well. Similarly, in Canadian law, while there are many aspects of consultation and accommodation of aboriginal people that will fall upon project developers, the ultimate duty to consult and accommodate resides with the Crown.

    Given the complex interplay between the roles and responsibilities of governments, businesses and indigenous peoples to design and implement a successful and rights-respecting consultation and consent processes, this is an increasingly important issue for business enterprises, particularly in relation to resource development. There are allegations of extractive industry companies infringing indigenous peoples rights as a result of their consultation practices (or lack thereof), particularly in countries where there are inadequate laws, regulations and mechanisms for free, prior and informed consultation and consent. Moreover, infringements of FPIC are often connected to infringements of other human rights, as well as to social conflicts and/or costly legal cases.
     

    Baffinland and (its parent company) ArcelorMittal’s policies do not explicitly address the issue of FPIC. However, they both have a number of policies and procedures that are relevant to the consultation, consent and participation of Inuit.

    Baffinland’s Sustainability Policy includes the following statement in section 3.0: “[w]e honour our commitments by being sensitive to local needs and priorities through engagement with local communities, governments, employees and the public. We work in active partnership to create a shared understanding of relevant social, economic and environmental issues, and take their views into consideration when making decisions.” Furthermore, Baffinland has prepared a Stakeholder Engagement Plan in the FEIS that provides detailed objectives for its overall consultation efforts with Inuit and other stakeholders, as well as specific goals and activities for the construction and operational phases of the Mary River Project.

    ArcelorMittal’s Human Rights Policy also contains the following commitment to dialogue with local communities: “We seek to respect human rights and
to develop an understanding of the cultures, customs and values that prevail in our local communities by developing an inclusive and open dialogue with the people affected by our operations. The ArcelorMittal Community Engagement Standard requires us to conduct an open and inclusive dialogue with local communities, including engaging with often under-represented groups such as women and Indigenous Peoples.” It is supported by an
    External Stakeholder Engagement Procedure that provides additional guidance.

    As a member of the Mining Association of Canada, Baffinland has also committed to the Towards Sustainable Mining guiding principles and an Aboriginal and Community Outreach Framework and Protocols.

    In terms of its practices, Baffinland’s record of community engagement and the progress in negotiating an IIBA are summarized in section 1.2.4 and 1.2.5 of the FEIS:

    1.2.4 Baffinland’s Record of Community Engagement

    Baffinland has been proactively engaged in consultation with local communities, increasing the scope of its consultation activities progressively since 2004. In 2007, Baffinland established liaison offices in the five North Baffin communities closest to the Project and in Iqaluit staffed by local Baffinland Liaison Officers. Due to financial constraints and a scaling back of operations in late 2008, the number of liaison offices was reduced to two from five but this number is being increased back to 5 for the beginning of 2012. With the exception of 2009, Baffinland has carried out bi-annual public meetings in the five North Baffin communities of Arctic Bay, Clyde River, Hall Beach, Igloolik, and Pond Inlet and, starting in 2010, Cape Dorset and Kimmirut. Details of the Company’s past consultation activities are provided in Volume 2, Section 1, and the Company’s Stakeholders Involvement Plan is included in Appendix 10F-1. The Stakeholders Involvement Plan and the Company’s engagement activities have been aligned with ArcelorMittal’s Community Engagement Standard included in Appendix 10F-1.

    1.2.5 Negotiating an Inuit Impact and Benefit Agreement

    Baffinland started discussions with the QIA in 2006 on the development of a future Inuit Impact and Benefit Agreement (IIBA). In March 2009 the two organizations reached an agreement-in-principle on the economic provisions of a future IIBA through the signing of a Memorandum of Understanding (MOU). Additional sections of the IIBA have also been successfully negotiated, and the Company and the QIA expect to complete a signed Agreement-in-Principle in the coming months. In a November 24, 2011, letter to the NIRB, the QIA indicated that it is close to completing negotiations with Baffinland on an IIBA for the overall project and anticipate having a final draft agreement by the end of January 2012.

    Furthermore, since it submitted its project proposal for the Mary River Project to the NIRB in March 2008, Baffinland has naturally been the key participant in all the consultation opportunities provided for by the NIRB review process. This involved the preparation of and refinement of the FEIS, including providing responses to numerous Requests for Information and technical workshops with the Parties, including DIOs, as well as public hearings involving Inuit and other stakeholders. Numerous Baffinland executives, staff and advisors participated in the public hearings and made detailed presentations and responded to questions and concerns about different aspects of the Mary River Project.

    In addition to the terms and conditions placed on the Mary River Project, the NIRB Final Hearing Report also documents the various commitments that Baffinland made during the public hearings in relation to questions or concerns raised by community members. A significant number of these terms, conditions and commitments relate to on-going consultation with Inuit and other stakeholders.

    Further consultation efforts have been part of the development of the Addendum to the FEIS for the Early Revenue Phase; and, Baffinland and the other parties and stakeholders will participate in public hearings related to the NIRB’s forthcoming review of the Early Revenue Phase.

    What roles and contributions can other actors make to consultation?

    In keeping with the UN Guiding Principles on Business and Human Rights, the assessment framework for the HRIA focuses primarily on the role of the State in protecting human rights and business enterprises in respecting human rights. However, it is important to consider the roles and contributions of other actors to the consultation process for the Mary River Project.

    • Pursuant to the NLCA, the Qikitani Inuit Association (QIA) is a key actor in protecting Inuit rights through its role as the Designated Inuit Organization (DIO) for Inuit in the Baffinland region. The QIA was an active participant in the NIRB review process: in addition to participating in all stages of the review and making detailed submissions, requests for information and recommendations, it also formed “Mary River Committees” to contribute to consultation efforts within the communities. Furthermore, as mentioned above, the QIA has the role and responsibility to negotiate the IIBA.

    • As a territorial government, the Government of Nunavut shares the Crown’s duty to consult and accommodate Inuit. The Government of Nunavut also was an active participant as a party in the NIRB review process, making detailed submissions, requests for information and recommendations from the perspective of various territorial government departments.

    • A number of individuals participated in the community roundtable portions of the public hearings, primarily Inuit from the project-affected communities, including elders and some women and youth. Furthermore, a number of public officials and organizations made presentations during the community roundtables. For example, these included the mayors of Iqaluit, Igloolik and Pond Inlet, the Royal Canadian Mounted Police, and the World Wildlife Fund. According to the NIRB Rules of Procedure, it is also possible for Inuit and members of the general public to apply for formal intervenor status, which provides a more formal role in making presentations to the Board and posing questions to the other Parties during the public hearings. To make submissions related to the HRIA, Dr. Zacharias Kunuk and Lloyd Lipsett applied for intervenor status, which was granted. No other individuals applied for intervenor status.

    • The media has a role in promoting informed consultation with Inuit. Local and national media outlets covered the public hearings, particularly the opening sessions in Iqaluit (some concern was expressed by community members in Pond Inlet where media was not present). IsumaTV used local radio to promote informed consultation and active participation of Inuit in advance of the public hearings; attended the hearings in Iqaluit and Igloolik; and, assisted in broadcasting the hearings in Igloolik and Pond Inlet on local radio and over the Internet.

    Concluding observations about free, prior and informed consent

    From the discussion above, it is clear that Inuit have been consulted about the Mary River Project. Baffinland began its consultation efforts in 2006 and there have been numerous opportunities for formal and informal consultation as part of the NIRB review process that began in 2008 and culminated with final public hearings in the summer of 2012. The consultation has been with Designated Inuit Organizations and Inuit (as well as federal and territorial government departments, other public representatives, organizations and intervenors with mandates related to protecting or supporting Inuit).

    While the concept of “Free, Prior and Informed Consent” (FPIC) has not been formally recognized in Canadian law or in the corporate policies of Baffinland or ArcelorMittal, there is an appropriate legal and institutional framework for consultation with Inuit in the context of the Mary River Project. A number of factors point towards this preliminary conclusion: the constitutional common law “duty to consult and accommodate” in Canada;” the terms of the Nunavut Land Claims Agreement that provide for the NIRB review process and the requirement to complete an IIBA for major development projects; and, the consultation and engagement practices of Baffinland to date.

    In terms of “free” consultation, there was no conduct that would amount to intimidation, coercion or manipulation during the public hearings.

    • Some community members expressed concern in private about the tense atmosphere that surrounded some portions of the public hearings; and, this may have affected their willingness to participate or express themselves fully at the hearings. However, the NIRB Board and staff made repeated efforts to encourage all participants to freely express their views, particularly during the community roundtables. Ultimately, a wide range of views on different issues was expressed throughout the community roundtables, often in colourful and/or forceful terms.

    • The NIRB facilitated the participation of community representatives from 11 communities in the public hearings in Iqaluit, including representatives of women and youth.

    • The participation of the Mary River Committees at the public hearings was also facilitated by the QIA.

    • Participation in the public hearings was promoted through the local newspapers and IsumaTV’s community radio programmes.

    • All requests for intervenor status that were submitted according to the Rules of Procedure were accepted by the NIRB. However, a single request for intervenor status was made by an individual (Dr. Zacharias Kunuk), so this avenue for participation was under-utilized. Some potential reasons for this are: unfamiliarity with this procedure; reluctance to use formal and written procedures, especially when other opportunities to make oral presentations existed in the NIRB’s Community Roundtables.

    In terms of “prior” consultation, extensive consultation took place before the Mary River Project was approved and began construction.

    • Consultation efforts of Baffinland began in 2006.

    • The NIRB review process began in March 2008 and the Minister’s approval of the Mary River Project was given in December 2012.

    • There are still additional consultations that will take place in relation to the Early Revenue Phase.

    In terms of “informed” consultation, there was extensive information provided in various forms throughout the NIRB review process.

    • The key documents in the review process were the draft and final Environmental Impact Statements, which contain very detailed information about environmental, social, economic and archaeological impacts that responded to the “EIS Guidelines” established by the NIRB.

    • The information contained in the draft and final EIS goes far beyond the basic criteria enumerated by the UN Development Group.

    • The information in the draft and final EIS, including about potential negative impacts, was probed and refined through a process of Requests for Information, technical meetings and questions to Baffinland and other parties in the final public hearings. If anything, the concern is that the information in such impact statements can be too voluminous and technical to be digested and understood by non-experts.

    • In this regard, a popular summary of the FEIS was prepared and translated into Inuktitut, as were other presentation materials. Simultaneous translation between Inuktitut, English and French was provided throughout the public hearings. The challenges of translating and communicating the detailed and technical information in impact assessments are addressed elsewhere in this report.

    • All of the written information pertaining to the Mary River Project was made available electronically on the NIRB website and through the distribution list for the Mary River project.

    • Through Mary River Committees, IsumaTV’s community radio shows and other mechanisms, additional information was provided to communities about different aspects of the Mary River Project.

    In terms of “consultation and consent:”

    • At the final hearings, the Designated Inuit Organizations, QIA and NTI, expressed support for the Mary River Project, while raising some concerns and providing recommendations to the NIRB.

    • Although it has a different legal status than DIOs, the majority of the constituents of the Government of Nunavut are Inuit. The Government of Nunavut also supported the project, while raising some concerns and providing recommendations to the NIRB.

    • Elders and other Inuk expressed many concerns and expectations about different aspects of the Mary River Project throughout the public hearings. However, it was quite rare that these individuals expressed the view that the project should not go ahead; rather most individuals emphasized the need for jobs and benefits for Inuit and strong protections for the environment and communities as the basis for the project proceeding.

    • As mentioned above, a number of public officials and organizations made presentations during the community roundtables, raising new issues about potential social impacts and safety issues that would affect Inuit.

    • The NIRB Final Hearing Report provides a detailed and balanced discussion of the issues and themes raised at the public hearings; and, has recommended over 180 terms and conditions in response to community concerns. It also has listed the commitments that Baffinland made during the hearings in Appendix A of its report.

    • The Minister has accepted the Mary River Project based on the terms and conditions in the NIRB Final Hearing Report, so the consultation and input of Inuit will have an influence on the project’s development and operation. A significant number of the terms and conditions address on-going consultation with Inuit and other stakeholders.

    • Insert point about consent with respect to the final IIBA and any information, consultation and ratification with communities before its ratification.

    Consultation processes are by their nature complex and imperfect. Their success requires the sustained efforts of many parties over a long period of time. They can always be improved.

    Consultation and consent should not be viewed as a “one-time event,” but rather as a continuous process of building and maintaining trust and the social license to operate. The opportunities and successes of consultation through the NIRB review process and Baffinland’s community engagement should be viewed as the foundation for on-going consultation over the lifespan of the mine.

    Recommendations

    1. Conduct a survey about the consultation efforts to date to understand what has worked and what can be improved for on-going consultation with Inuit. The current regulatory phase of the project is a good opportunity to conduct such an evaluation in order to design and refine consultation, engagement and monitoring mechanisms and procedures going forward. Some of the issues that could be addressed include: timing, format and duration of public hearings; preferred format and media for receiving information; how to enhance the participation of women and youth; role of company liaison offices and local committees; how to address consultation fatigue and information overload; etc. From a human rights perspective, the satisfaction of Inuit about consultation efforts and their belief that they have been carried out in good faith are important issues. Periodic and independent review of consultation practices is suggested as an important rights-respecting practice.

    2. Make use of multimedia options to enhance on-going informed consultation. Moving forward, there will be a wide variety of issues being discussed, reports being produced, and monitoring groups examining different aspects of the Mary River Project. It would be very useful to create an Internet platform where all this information can be compiled and accessed by Inuit and other stakeholders. Internet tools can also provide opportunities for comments and feedback. As is discussed elsewhere in the report, the Internet provides opportunities to use video and audio tools that can help address some of the challenges of translation into oral Inuktitut.

    3. Ensure the NIRB has the capacity and resources to oversee on-going consultation for Mary River and to ensure prior consultation for future mining projects in Nunavut. As discussed above, the NIRB has played a critical role in protecting the consultation rights of Inuit throughout its review process, public hearings and terms and conditions in its Final Hearing Report. It will also play an important role in monitoring the Mary River Project, including the terms and conditions relating to on-going consultations. As the NIRB will likely be under increased pressure and workload given the predicted expansion of exploration and mining activity in Nunavut, as well as the government’s desire to streamline and place time-limits on environmental review processes. If part of the social acceptability and approval of the Mary River Project relates to the strength of the NIRB review process, it is important that the NIRB have adequate resources to conduct rigorous reviews in the future.

    4. Baffinland should fully implement its Stakeholder Engagement Plan, as supplemented by the group-wide requirements of ArcelorMittal and the commitments undertaken as part of the Mining Association of Canada’s Towards Sustainable Mining. As with other recommendations about the implementation of corporate policies, effective oversight, periodic evaluation including stakeholder feedback, and public reporting are key elements.

    Additional Resources

    Free, Prior and Informed Consent

    International Finance Corporation, Performance Standard 7 on Indigenous Peoples.

    UN Global Compact, United Nations Declaration on the Rights of Indigenous Peoples: A Business Reference Guide.

    UN Expert Mechanism on Indigenous Peoples Rights, Advice No. 4: Indigenous peoples and the right to participate in decision-making, with a focus on extractive industries.

    Boreal Leadership Council, Free Prior, and Informed Consent in Canada: Towards practical guidance for developers and Aboriginal communities.

    “Making Free, Prior and Informed Consent a Reality: Indigenous Peoples and the Extractive Industry”

    Impact Benefit Agreements

    Nunavut Land Claims Agreement: http://laws-lois.justice.gc.ca/eng/acts/n-28.7/

    What are Impact Benefit Agreements? http://www.miningfacts.org/What-are-impact-benefit-agreements/

    Impact and Benefit Agreement Research Network: http://www.impactandbenefit.com/

    IBA Community Toolkit: http://www.ibacommunitytoolkit.ca/

    Gowlings’ webinar on Aboriginal Impact Benefit Agreements: http://m.gowlings.com/knowledgeCentre/publicationPDFs/IBA-January-11-Webinar.pdf
     

    05-07-2013

  • Human Rights Assessment

    by: Gabriela Gamez

    channel: Human Rights in Canada – Summary

    3. Human Rights in Canada – Full Finding

    Key message

    The assessment of the human rights situation for the Mary River mine begins with a review of how government protects human rights in Canada. According to the UN Guiding Principles on Business and Human Rights, governments must protect against human rights abuse within their territory, including by companies. This requires taking steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.

    Overview

    Canada is a signatory to most international human rights treaties. Even though it was initially opposed to the UN Declaration on the Rights of Indigenous Peoples, it now supports it. Canada also supports international human rights standards related to business and human rights. At the same time, Canada is aggressively pursuing resource development (in Canada and around the world) as part of its economic strategy. Canada needs to ensure that its resource development strategy does not contradict human rights.

    Within Canada, human rights are protected by the Constitution, the Charter of Rights and Freedoms, and provincial or territorial human rights laws. Furthermore, the Canadian Constitution and modern land claims agreements provide a strong protection of aboriginal rights in Canada.

    In Nunavut, the protection of collective Inuit rights is assured by the Nunavut Land Claims Agreement. There is also a Nunavut Human Rights Act that protects Nunavummiut against discrimination and creates the Nunavut Human Rights Tribunal. In a recent report to the Government of Nunavut, it was recommended that it create a new human rights commission to provide better protection for and education about human rights in Nunavut.

    While there are strong legal protections for human rights in Canada, important challenges remain with respect to implementation of both Inuit and human rights in Nunavut, including:

    • Poverty and lack of economic and employment opportunities affect the realization of economic and social rights in Inuit communities.

    • The remote location, lack of infrastructure and high cost of food and services affect the right to food, the right to housing and the right to health of many individuals and families.

    • The territorial and local governments lack resources to fully implement their human rights obligations.

    • There are gaps in terms of access to remedies as Nunavut does not have a human rights commission, and there are significant barriers for Inuit using the legal system.

    It is against this backdrop that the Baffinland company must ensure that its operations do not harm the human rights of Nunavummiut.

    International Standards: State obligation to protect human rights in accordance with the UN Guiding Principles on Business and Human Rights

    1. States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.

    Commentary

    States’ international human rights law obligations require that they respect, protect and fulfil the human rights of individuals within their territory and/ or jurisdiction. This includes the duty to protect against human rights abuse by third parties, including business enterprises.

    The State duty to protect is a standard of conduct. Therefore, States are not per se responsible for human rights abuse by private actors. However, States may breach their international human rights law obligations where such abuse can be attributed to them, or where they fail to take appropriate steps to prevent, investigate, punish and redress private actors’ abuse. While States generally have discretion in deciding upon these steps, they should consider the full range of permissible preventative and remedial measures, including policies, legislation, regulations and adjudication. States also have the duty to protect and promote the rule of law, including by taking measures to ensure equality before the law, fairness in its application, and by providing for adequate accountability, legal certainty, and procedural and legal transparency.

    2. States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.

    Commentary

    At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis. Within these parameters some human rights treaty bodies recommend that home States take steps to prevent abuse abroad by business enterprises within their jurisdiction.

    There are strong policy reasons for home States to set out clearly the expectation that businesses respect human rights abroad, especially where the State itself is involved in or supports those businesses. The reasons include ensuring predictability for business enterprises by providing coherent and consistent messages, and preserving the State’s own reputation.

    States have adopted a range of approaches in this regard. Some are domestic measures with extraterritorial implications. Examples include requirements on “parent” companies to report on the global operations of the entire enterprise; multilateral soft-law instruments such as the Guidelines for Multinational Enterprises of the Organisation for Economic Co-operation and Development; and performance standards required by institutions that support overseas investments. Other approaches amount to direct extraterritorial legislation and enforcement. This includes criminal regimes that allow for prosecutions based on the nationality of the perpetrator no matter where the offence occurs. Various factors may contribute to the perceived and actual reasonableness of States’ actions, for example whether they are grounded in multilateral agreement.

    3. In meeting their duty to protect, States should:

    (a) Enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights, and periodically to assess the adequacy of such laws and address any gaps;
    (b) Ensure that other laws and policies governing the creation and ongoing operation of business enterprises, such as corporate law, do not constrain but enable business respect for human rights;
    (c) Provide effective guidance to business enterprises on how to respect human rights throughout their operations;
    (d) Encourage, and where appropriate require, business enterprises to communicate how they address their human rights impacts.

    Commentary

    States should not assume that businesses invariably prefer, or benefit from, State inaction, and they should consider a smart mix of measures – national and international, mandatory and voluntary – to foster business respect for human rights.

    The failure to enforce existing laws that directly or indirectly regulate business respect for human rights is often a significant legal gap in State practice. Such laws might range from non-discrimination and labour laws to environmental, property, privacy and anti-bribery laws. Therefore, it is important for States to consider whether such laws are currently being enforced effectively, and if not, why this is the case and what measures may reasonably correct the situation.

    It is equally important for States to review whether these laws provide the necessary coverage in light of evolving circumstances and whether, together with relevant policies, they provide an environment conducive to business respect for human rights. For example, greater clarity in some areas of law and policy, such as those governing access to land, including entitlements in relation to ownership or use of land, is often necessary to protect both rights-holders and business enterprises.

    Laws and policies that govern the creation and ongoing operation of business enterprises, such as corporate and securities laws, directly shape business behaviour. Yet their implications for human rights remain poorly understood. For example, there is a lack of clarity in corporate and securities law regarding what companies and their officers are permitted, let alone required, to do regarding human rights. Laws and policies in this area should provide sufficient guidance to enable enterprises to respect human rights, with due regard to the role of existing governance structures such as corporate boards.

    Guidance to business enterprises on respecting human rights should indicate expected outcomes and help share best practices. It should advise on appropriate methods, including human rights due diligence, and how to consider effectively issues of gender, vulnerability and/or marginalization, recognizing the specific challenges that may be faced by indigenous peoples, women, national or ethnic minorities, religious and linguistic minorities, children, persons with disabilities, and migrant workers and their families.

    National human rights institutions that comply with the Paris Principles have an important role to play in helping States identify whether relevant laws are aligned with their human rights obligations and are being effectively enforced, and in providing guidance on human rights also to business enterprises and other non-State actors.

    Communication by business enterprises on how they address their human rights impacts can range from informal engagement with affected stakeholders to formal public reporting. State encouragement of, or where appropriate requirements for, such communication are important in fostering respect for human rights by business enterprises. Incentives to communicate adequate information could include provisions to give weight to such self-reporting in the event of any judicial or administrative proceeding. A requirement to communicate can be particularly appropriate where the nature of business operations or operating contexts pose a significant risk to human rights. Policies or laws in this area can usefully clarify what and how businesses should communicate, helping to ensure both the accessibility and accuracy of communications.
    Any stipulation of what would constitute adequate communication should take into account risks that it may pose to the safety and security of individuals and facilities; legitimate requirements of commercial confidentiality; and variations in companies’ size and structures.

    Financial reporting requirements should clarify that human rights impacts in some instances may be “material” or “significant” to the economic performance of the business enterprise.

    Human Rights Protections in Canada

    The following table outlines some of the main human rights protections in Canada in relation to the main issues addressed in HRIA methodologies. Additional information about priority issues is provided in the other key findings.

    05-07-2013

  • Human Rights Assessment

    by: Gabriela Gamez

    channel: Mining in Nunavut – Summary

    2. Mining in Nunavut – Full Finding

    Key message

    The Mary River mine is not the first mine to developed in Nunavut, nor will it be the last. Mining projects in Nunavut are becoming increasingly feasible from a technological and economic point of view. Climate change will make mining and resource development more attractive and accessible. The Nunavut Land Claims Agreement provides important protections for Inuit rights in the context of mining, including their right to benefit from the exploitation of natural resources on their lands and territories. The context of mining in Nunavut helps to remind us that the success of the Mary River project is not just the responsibility of the Baffinland company. It includes the different levels of government and the Designated Inuit Organizations.

    Nunavut: A “Rising Star” in Mining

    According to the Mining Journal, Nunavut is a “Rising Star” in the mining sector:

    Mining holds great promise to help pave the way to Nunavut’s economic self-reliance. Mineral production from its first mine already accounts for nearly a fifth of the gross domestic product. More than C$395 million was spent on exploration and development in 2011. With additional investments in mineral exploration, the Nunavut mining industry boosted real GDP by 3.3% in 2011. In comparison, the public sector grew moderately by only 1.9%, despite making up over 40% of the economy.

    These investments present significant training and employment opportunities. It is estimated several thousand jobs will emerge over the coming years, making the mining industry Nunavut’s largest private-sector employer. As well, the government recognises the substantial role that the minerals industry plays in developing Nunavut’s infrastructure. With new transportation networks such as roads, port facilities, and airstrips, Nunavut will be able to provide easier and cheaper access to not only support expanding exploration programmes and new mining development, but also lower the cost of living for communities.

    Source: http://www.mining-journal.com/__data/assets/supplement_file_attachment/0005/324149/Nunavut2012scr.pdf

    Legal regime for mining

    In Canada, surface rights and mineral rights came with the purchase of land until some time in the early 1900s, depending on the jurisdiction. Since then, mineral rights have been government-owned and cannot be purchased, but only leased, by individuals or companies. As a result, the mineral rights on more than 90% of Canada’s land are currently owned by governments.

    Where mineral rights are privately owned, they can be sold independently of surface rights, so that surface and mineral rights on the same property can be held by different owners.

    As per the Canadian Constitution, the regulation of mining activities on publicly owned mineral leases falls under provincial/territorial government jurisdiction. Thus, there is separate mining rights legislation for each of the thirteen Canadian jurisdictions except Nunavut.

    Nunavut mining and exploration activities are regulated by the Department of Aboriginal Affairs and Northern Development. However, as part of the Nunavut Land Claims Agreement, the mineral rights for about 10% of Nunavut have been turned over to the Inuit community. These lands comprise large blocks that scatter throughout Nunavut. The Inuit community set the rules and regulations in those blocks that are not under federal jurisdiction.

    The Mary River Mine is one of the blocks that have been turned over to the Inuit as part of the Nunavut Land Claims Agreement.

    Source: General mineral rights regime in Canada: http://www.nrcan.gc.ca/minerals-metals/policy/legislation-regulations/3707

    Mining as part of Canada’s Northern Strategy

    The priorities of Canada’s Northern Strategy, released in 2009, include:

    • Exercising our Arctic sovereignty
    • Promoting social and economic development
    • Protecting our environmental heritage
    • Improving and devolving northern governance

    The Government of Canada is introducing measures to ensure that regulatory systems across the North protect the environment in a predictable, effective and efficient manner. Efforts such as the Northern Regulatory Improvement Initiative are helping resolve the complex approval process for development projects, to ensure new projects can get up and running quickly and efficiently.

    Mining activities and major projects such as the Mackenzie Gas Project are the cornerstones of sustained economic activity in the North and the key to building prosperous Aboriginal and Northern communities. Diamond mining in the North is now a $2-billion-per-year industry, which is about half of the economy of the Northwest Territories. The Mackenzie Gas Project – now estimated at over $16 billion – will provide direct benefits to Aboriginal communities through the development of a new model for Aboriginal participation.

    The Aboriginal Pipeline Group will provide for Aboriginal participation in the developing economy, notably through an ownership position in the Project. In addition to on-shore exploration and development there is renewed interest in the off-shore, including a new era of oil and gas exploration in the deeper waters of the Beaufort Sea. Canada will continue to support the sustainable development of these strategic resource endowments.

    The large-scale projects already underway barely scratch the surface of the North’s immense store of mineral, petroleum, hydro and ocean resources. However, the full extent of the natural resources potential in the Arctic is still unknown. The Government of Canada announced a significant new geo-mapping effort – Geo-Mapping for energy and Minerals – that will combine the latest technology and geoscientific analysis methodsto build our understanding of the geology of Canada’s North, including in the Canadian Arctic Archipelago. The results of this work will highlight areas of mineral and petroleum potential, lead to more effective private sector exploration investment and create employment opportunities in the North.

    Source: Government of Canada Northern Strategy (2009): http://www.northernstrategy.gc.ca/cns/cns.pdf

    Changes to Regulatory Regimes

    There have been changes to the regulatory regimes that affect resource development across Canada.

    In particular significant public attention was given to revisions to the Canada Environmental Assessment Act, 2012 aimed at streamlining environmental impact review processes. While this change does not affect the impact review process of the Mary River Mine, which began in 2008, it does signal a larger shift in approach to regulation of major resource development projects.

    In the north, there has been another on-going initiative to streamline regulatory processes for resource development called the “Northern Regulatory Improvement Initiative.” This regulatory reform process is leading to changes to the policies and timeframes under which future mining projects will be reviewed and approved.

    Nunavut Land Claims Agreement

    The Nunavut Land Claims Agreement provides important protections for Inuit rights in the context of mining, including their right to benefit from the exploitation of natural resources on their lands and territories:

    • Some portions of the territory have been designated as Inuit-Owned Lands, meaning that Inuit own the sub-surface mineral rights and receive the royalties when the minerals are extracted. The main deposit at Mary River is on Inuit-Owned Lands.

    • The Nunavut Impact Review Board was created to conduct reviews, public hearings and make recommendations about measures to protect Inuit and Nunavummiut from adverse environmental and social impacts of mining projects. The review of the Mary River mine began in 2008 and will continue this summer and fall with respect to the Early Revenue Phase.

    • There is a requirement that all major development projects are subject to Inuit Impact Benefit Agreements, which are negotiated between the regional Designated Inuit Organization and the developer of a mine. The Qikiqtani Inuit Association is currently in negotiation of an IIBA with the Baffinland company.

    “Inuit were once on the outside of the mining industry looking in. The signing of the [Nunavut Land Claims] Agreement changed all that. Now, for many reasons, we feel we feel we can be considered part of the mining industry and that we are no longer on the outside. Here are some of the reasons I say that:

    • Inuit hold land with both surface and mineral rights;

    • Inuit make agreements with exploration and mining companies and 
individuals for mineral rights to some of the most prospective land in 
Nunavut;

    • Inuit sit on boards which screen and review projects;

    • Inuit collect royalties from any mining project;

    • Inuit enter into Impact and Benefit Agreements for all major developments
on Inuit Owned Lands or consult on benefit plans for developments on 
Crown land;

    • Inuit development corporations provide goods and services for exploration 
and mining projects; and, finally,

    • many Inuit work directly on projects or for businesses which provide goods and services to the projects.”

    Nunavut Impact Review Board

    The Nunavut Impact Review Board is an environmental assessment agency, established under Articles 10 and 12 of the Nunavut Land Claims Agreement. The Board determines whether development projects proposed for the Nunavut Settlement Area (NSA) should proceed and, if so, under what terms and conditions. The primary objectives of the Board are to protect and promote the existing and future well being of the residents and communities of the NSA, and to protect the ecosystem integrity of the settlement area. The Minister of Indian Affairs and Northern Development has the overriding authority to approve or reject projects in national or regional interest.

    The Board consists of nine members, including a Chair. In consultation with the Government of Nunavut, the Minister appoints the Chair from nominations agreed to and provided by the members. Nunavut Tunngavik Incorporated nominates four members for appointment by the Minister. One or more federal ministers appoints two members. The Government of Nunavut appoints two members directly to the Board.

    Source: http://www.aadnc-aandc.gc.ca/eng/1100100011174/1100100011175

    Nunavut Tunngavit Inc.’s Mining Policy

    The objectives of NTI’s mining policy are to:

    • Minimize The Negative Impacts: 
Ensure that exploration and mining will be planned and carried out in a way which will have the least possible impact on the environment, wildlife, habitat, and on the lives and culture of Inuit.

    • Maximize The Benefits Of Mining To Inuit: 
Ensure that to the greatest extent possible, the benefits of mining will remain in Nunavut, both in Nunavut as a whole and in the local communities that are impacted.

    • Attract Mining Investment: 
Promote the development of a political and economic climate which will encourage the mining industry to invest.

    • Resolve Land Use Conflicts: 
Promote certainty and clarify for land access and resolve land use conflicts.

    • Improve Consultation and Clarify Decision Making: 
Improve communications, consultation and coordination among all of the stakeholders and clarify the decision-making process

    Source: http://ntilands.tunngavik.com/minerals-oil-and-gas-management/mining-policy/

    Concluding Observations

    Despite these protections in the Nunavut Land Claims Agreement, there are some concerns about the future of mining in Nunavut:

    • As the Government of Canada works to streamline environmental and social review processes, will the NIRB be able to conduct as rigorous impact assessments for future mining projects as it did for the Mary River mine?

    • If there are numerous projects that are developed at the same time, will the NIRB have the capacity to conduct simultaneous reviews—while also fulfilling its responsibilities to monitor the implementation of the Mary River project certificate?

    • As Mary River and other mines begin to generate revenues and profits, how will the economic and other benefits be allocated at the community level?

    The context of mining in Nunavut helps to remind us that the success of the Mary River project is not just the responsibility of the Baffinland company. It includes the different levels of government and the Designated Inuit Organizations. In our human rights impact assessment, we provide recommendations for all of these actors to ensure that the mine respects human rights.

    Resources

    Mining Journal, Supplement on Nunavut, “Canada’s Rising Star” (2012): http://www.mining-journal.com/__data/assets/supplement_file_attachment/0005/324149/Nunavut2012scr.pdf

    Source: General mineral rights regime in Canada: http://www.nrcan.gc.ca/minerals-metals/policy/legislation-regulations/3707

    Government of Canada Mineral and Metals Policy (1996): http://www.nrcan.gc.ca/minerals-metals/policy/bulletin/minerals-metals-policy/2928

    Government of Canada Northern Strategy (2009): http://www.northernstrategy.gc.ca/cns/cns.pdf

    Revision to Canada’s Environmental Assessment Act: http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=16254939-1

    Presentation on the Northern Regulatory Improvement Initiative: http://www.nunavutminingsymposium.ca/wp-content/uploads/2009/06/steven-trainer-330pm.pdf

    Source: http://ntilands.tunngavik.com/minerals-oil-and-gas-management/mining-policy/

    Government of Nunavut’s uranium mining policy statement: http://www.uranium.gov.nu.ca/
     

    05-07-2013

  • Human Rights Assessment

    by: Gabriela Gamez

    channel: Mary River Mine – Summary

    1. Mary River Mine – Full Finding

    Key message

    The Mary River Mine is a massive and unprecedented mining development for Nunavut (and the Arctic region in general). On the one hand, it represents a major opportunity for potential benefits to workers and their families, to Inuit communities and designated Inuit organizations, as well as to the territorial and federal governments. On the other hand, there are risks of negative impacts related to the environment, socio-economic conditions and human rights. Therefore, all of the relevant actors should have strong and shared interests that the Mary River Mine will become a good example of responsible and rights-respecting northern development. 

    Overview of the Mary River Mine

    The Mary River Mine is an open pit iron mine on North Baffin Island on Inuit owned lands in the Qikiqtaaluk Region of Nunavut. The grade of the iron ore is very high quality and does not require any further chemical processing or tailings. It can be shipped away as soon as it has been taken out of the ground.

    The iron ore deposit was discovered in 1962, but only in recent years has it become economically viable to develop the mine due to high commodity prices. Climate change is also making the Arctic region more accessible for natural resource extraction.

    The Mary River Mine is owned by the Baffinland Iron Mine Corporation (BIMC), a private company headquartered in Toronto, Ontario. BIMC is jointly owned: 50% by ArcelorMittal, the world’s largest steel-maker, and 50% by Iron Ore Holdings LP, a U.S.-based private equity firm.

    The initial project for the Mary River Mine was submitted to the Nunavut Impact Review Board (NIRB) in 2008. After a lengthy and rigorous review process by the NIRB, including public hearings in the summer of 2012, the proposed mine was approved by the Minister of Aboriginal Affairs and Northern Development on December 3, 2012.

    However, shortly afterwards, BIMC submitted a proposal to change the project and include an “Early Revenue Phase” for the mine. BIMC submitted a new Environmental Impact Statement for this “Early Revenue Phase” at the end of June 2013 and the NIRB will be conducting a reconsideration process to determine whether the Project Certificate needs to be modified to address potential new impacts on the environment and on communities. Additional public hearings will take place in the late summer or fall of 2013.

    Information on Baffinland Iron Mines Corporation (BIMC)

    BIMC ownership

    50% by ArcelorMittal
    • ArcelorMittal is the world’s largest steel company with operations in 60 countries
    • Headquarters are in Luxembourg
    • 245,000 employees worldwide
    • Publicly traded on the stock exchanges of New York, Amsterdam, Paris, Luxembourg, Barcelona, Bilbao, Madrid and Valencia
    • Mr. Lakshmi Mittal is the CEO and owns 40% of the shares and voting shares in the company

    50% by Iron Ore Holdings LP
    • Incorporated according to the laws of Delaware, U.S.A.
    • Backed by the Energy and Minerals Group, a $2 billion private equity firm based in Houston, U.S.A.

    Brief corporate history

    • 2004: BIMC goes public to raise funds for exploration. It is listed on the Toronto stock exchange (TSX).
    • 2010-2011: Bidding war between different investors to gain control of BIMC.
    • 2011: ArcelorMittal and Iron Ore Holdings LP join forces to acquire all the shares of BIMC for $590 million. BIMC is “taken private,” meaning that it is no longer listed on the Toronto stock exchange. At the time, ArcelorMittal owns 70% and Iron Ore Holdings LP owns 30% of BIMC.
    • 2012: Ontario Securities Commission begins a proceeding alleging insider trading against former BIMC consultant: http://www.osc.gov.on.ca/en/Proceedings_soa_20120109_waheed-walter.htm
    • 2012: ArcelorMittal sells 20% of its interest in BIMC to Iron Ore Holdings LP, so they currently each own 50% of BIMC.

    Senior management

    • Tom Paddon, President & Chief Executive Officer
    • Michael Anderson, Vice-President, Operations
    • Stephanie Anderson, Chief Financial Officer
    • Ronald Hampton, Vice-President and Project Director
    • Erik Madsen, Vice President, Sustainable Development Health, Safety & Environment
    • Richard (Dick) Matthews, Vice President, Technical Services
    • Greg Missal, Vice President, Corporate Affairs
    • Michael T. Zurowski, Executive Vice President
    • Biographies of senior management team: http://www.baffinland.com/about-us/leadership/?lang=en

    Original proposal for Mary River Mine

    The following description of the Mary River Mine is taken from the NIRB Final Hearing Report:

    The Mary River Project Proposal consists of the proposed construction, operation, closure, and reclamation of an open pit mine and associated infrastructure for the extraction, transportation and shipment of high grade iron ore from a deposit located on the North Baffin Island, in the Qikiqtaaluk Region of Nunavut. The proposed mine site would be 280 kilometres from Arctic Bay, 415 kilometres from Clyde River, 192 kilometres from Hall Beach, 155 kilometres from Igloolik, 1000 kilometres from Iqaluit and 160 kilometres from Pond Inlet. The Proponent of the Mary River Project is Baffinland Iron Mines Corporation (the Proponent or Baffinland).

    The iron ore deposit, Deposit No. 1 consists of an estimated 365 Mt (million tonnes) of direct shipping iron ore with an average iron grade of 64.66%. The Project would involve the production and shipment of an estimated 18 million tonnes-per-annum (Mt/a) of high grade iron ore from Deposit No. 1. The Proposal indicates that the high grade iron ore from this deposit is suitable for shipment to international markets after crushing and screening with no requirement for additional processing. Deposit No. 1 is estimated to be sufficient to meet the production design for an operating period of 21 years.

    After crushing and screening, the Proponent proposes to transport the iron ore from the mine via a 150 kilometre Railway that would be constructed between the mine site and an all season deep water port to be located at Steensby Inlet. Upon reaching Steensby Port, the iron ore would be loaded from the rail cars into purpose-built ore carrying vessels with ice-breaking capabilities for shipment to European customers.
    During the construction period, material, equipment and supplies required for the construction at the mine site and the northern portion of the Railway would be received via a port site at Milne Inlet. A freight dock would be constructed at Milne Port. At the onset of the Project, much of the construction material and supplies, fuel and mining equipment would be received at Milne Port during the open water season. Milne Port and the existing Milne Inlet Tote Road linking the mine site to Milne Port would be upgraded to improve access from the Milne Port to the mine site. It is proposed that Milne Port would operate during the open water season while Steensby Port would operate year round. Once Steensby Port is operational, Milne Port would only be used occasionally for the delivery of oversized equipment to the mine site.

    The Project would include the following major phases:
    • Construction, which is projected to take four years;
    • Operations, which is projected to last approximately 21 years;
    • Closure, which is projected to take 3 years and Post-Closure Monitoring, which is projected to 
last for 5 years, and if closure objectives are not met, could extend beyond 5 years.

    Early Revenue Phase

    The following summary of the Early Revenue Phase (ERP) is taken from the Popular Summary of the Addendum to the FEIS submitted to the NIRB by Baffinland:

    With the introduction of the ERP, the Mary River Project consists of mining iron ore from the reserve at Deposit No. 1 at a production rate of 21.5 Million tonnes per year (Mt/a). Initially, for the Early Revenue Phase, 3.5 Mtpa of iron ore will be mined, transported by trucks to Milne Port and shipped to markets from Milne Port during the open water season. As global markets improve for the prices of iron ore, the Company intends to proceed with the construction and operation of the larger Approved Project which includes the construction, operation, closure, and reclamation of a large scale mining operation (open-pit mine) and associated infrastructure for extraction, a railway link for the transportation of ore to Steensby Port, and, the construction and operation of a year around port facilities on Steensby Inlet for the shipment of iron ore.

    There are 3 main project locations for the Early Revenue Phase (ERP) – the mine site, Milne Port north of the mine site, and the Tote Road which connects the Mine Site to Milne Port. Only limited development will occur at the Mine Site, sufficient to support the mining of 3.5 Mtpa of iron ore. The Tote Road will be upgraded to enable safe and efficient transportation of ore by truck from the Mine site to Milne Port.
    Milne Port will be fully developed and will accommodate a 3.5 million tonnes ore stockpile, an ore dock, maintenance facility and associated infrastructure for the operation of the port facilities.

    Concluding observations

    This overview of the Mary River Mine defines the corporate and operational context for the human rights analysis in the following sections of the HRIA report.

    Some key questions and issues that the corporate and operational context raises are:

    • Now that ArcelorMittal and Iron Ore Holdings LP are 50% partners, what are the implications for Baffinland’s policies? Will it continue to implement ArcelorMittal’s strong policies and procedures—including its Human Rights Policies—as it would have when ArcelorMittal was a majority owner (70%)?

    • The high grade of the iron ore at Mary River is an important consideration, especially as it means that there is no processing or tailings required at the mine site. This significantly reduces the human rights risks related to the environment, employees’ health and to closure.

    • The fact that the mine will be developed more slowly now because of the “Early Revenue Phase” presents some positive aspects from a human rights perspective: there will be more opportunities for formal consultation with the affected peoples through the NIRB process; earlier opportunities for jobs and training for Inuit who want to work at the mine; and, more time to complete studies and prepare monitoring programmes related to the environmental impacts of the railway and shipping route out of Steensby Inlet.

    • There will inevitably be other changes over the mine’s lifespan, and therefore Inuit need to be informed and consulted on an on-going basis if they are going to participate successfully in the development of the mine.

    Additional Information

    BIMC website: http://baffinland.com

    ArcelorMittal website: http://www.arcelormittal.com/corp/

    Profile on Mr. Laksmi: http://en.wikipedia.org/wiki/Lakshmi_Mittal

    Energy and Metals Group website: http://www.emgtx.com/

    Further information on the original proposal for the Mary River mine is available on the NIRB website (see, in particular, the Final Environmental Impact Assessment submitted by BIMC):
    ftp://ftp.nirb.ca/02-REVIEWS/ACTIVE%20REVIEWS/08MN053-BAFFINLAND%20MARY%20RIVER/1-SCREENING/01-APPLICATION/080320-08MN053-Development%20Proposal%20for%20the%20Mary%20River%20Project.pdf

    Further information about the Early Revenue Phase is available on the NIRB website (see in particular the Addendum to the Final Environmental Impact Assessment): http://ftp.nirb.ca/03-MONITORING/08MN053-MARY%20RIVER%20IRON%20MINE/01-PROJECT%20CERTIFICATE/04-AMENDMENTS/

    A good summary of the revised project, including the Early Revenue Phase, is included in the correspondence between Baffinland and the Nunavut Planning Commission: http://ftp.nirb.ca/03-MONITORING/08MN053-MARY%20RIVER%20IRON%20MINE/01-PROJECT%20CERTIFICATE/04-AMENDMENTS/2012%20EARLY%20REVENUE%20PHASE/01-CORRESPONDENCE/
     

     

    05-07-2013

  • Human Rights Assessment

    by: Gabriela Gamez

    channel: Human Rights and the Baffinland Iron Mines Corporation – Summary

    4. Human Rights and the Baffinland Iron Mines Corporation – Full Finding

    Key message

    International standards require companies to respect human rights. This implies having a human rights policy, an on-going process to prevent adverse impacts on human rights, and an effective operational-level grievance mechanism. Many leading mining companies and industry associations have begun to develop detailed human rights policies and procedures. One of these companies is Baffinland’s parent company, ArcelorMittal. While there is no legal requirement for Baffinland to explicitly address human rights at the Mary River mine, the company should develop a human rights policy and procedures in order to meet international standards for the mining industry, the corporate policy commitments of ArcelorMittal, and the expectations of its stakeholders.

    International standards on business and human rights

    International human rights standards require companies to respect human rights. This implies having a human rights policy, an on-going human rights due diligence process, and an effective operational-level grievance mechanism.

    These standards are contained in the UN Guiding Principles on Business and Human Rights that were unanimously adopted by all the Member States of the United Nations in 2011.

    Human rights responsibilities are being integrated into other key international standards that are relevant to the mining industry, including the UN Global Compact, the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises, the International Finance Corporation (IFC) Performance Standards and International Standards Organization (ISO) 26000: Guidance for Social Responsibility.

    For the mining industry, it is important to note that the International Council on Mining and Metals (ICMM)—an industry association that brings together 22 of the world’s biggest mining and metals companies as well as 34 national and regional mining associations and global commodity associations—has released guidance for their members on management and best practices to respect human rights. Human rights are also referenced in a number of Canadian standards for the mining sector, including the Prospector and Developer’s Association of Canada, “E3 Plus: A Framework for Responsible Exploration,” and the Government of Canada’s International CSR strategy, “Building the Canadian Advantage: A Corporate Social Responsibility Strategy for the Canadian International Extractive Sector.”

    While the Government of Canada supports the UN Guiding Principles on Business and Human Rights, there is no strict legal requirement for the Baffinland Iron Mine Corporation to explicitly address international human rights at the Mary River mine.

    Overview of international standards relevant to Mary River Project

     

    Baffinland’s policy on human rights

    The Baffinland company states that “we respect human rights and the dignity of others” in section 3.0 of its Sustainability Policy. However, it does not have a more specific human rights policy or detailed human rights procedures that would meet the international standards referenced above. As discussed elsewhere in the HRIA, a number of Baffinland’s other policies and procedures address important aspects of human rights.

    Many leading mining companies and industry associations have begun to develop human rights policies and due diligence processes. One of these companies is Baffinland’s parent company, ArcelorMittal. Baffinland’s other parent company, Iron Ore Holdings LP, does not have a human rights policy.

    ArcelorMittal’s Human Rights Policy has not yet been explicitly integrated into the plans and management systems for the Mary River mine—at least as presented in the initial FEIS for the Mary River mine. Part of the reason for this is that the Human Rights Policy dates from 2010 and human rights were not part of the NIRB guidelines for the FEIS issued in 2009.

    ArcelorMittal promises that its Human Rights Policy should be integrated progressively into operations. It says: “the Policy and associated practices are expected to strengthen over time as the Company gains a better understanding of and becomes more experienced in promoting human rights. 
In support of this Policy we will develop operating procedures to create an environment where human rights are respected, and to also help ensure that we do not engage in activities that directly or indirectly violate human rights.”

    It also states: “[t]he Company’s implementation of this Human Rights Policy
is expected to strengthen over time as risk assessments and due diligence procedures will increasingly take into account human rights aspects. Human Rights will also be integrated into social impact assessments, with separate human rights impact assessments completed where required.”

    In a 2011 “Communication on Progress” report to the UN Global Compact, ArcelorMittal gave itself a score of 72% on integrating human rights principles into its operations. Its next report is due by the end of July 2013.

    In section 1.2.2 of the FEIS, Baffinland has committed to develop its Corporate Social Responsibility governance structures and policies consistent with the group-level commitments of ArcelorMittal. Presumably, this will include the implementation of the ArcelorMittal Human Rights Policy at Mary River.

    Baffinland has made additional commitments to conduct due diligence on human rights when it says that it “embraces the principle of Social Responsibility as outlined by the emerging voluntary International Standard, ISO 26000, Guidance for Social Responsibility.” As mentioned above, this ISO standard includes due diligence for human rights according to the UN Guiding Principles on Business and Human Rights.

    It is therefore expected that these various international standards will be operationalized at the Mary River Project through strong corporate governance and appropriate human rights policies and due diligence by Baffinland.

    Recommendations: What can Baffinland do to respect human rights?

    1. In furtherance of its commitments to social responsibility and to implement ArcelorMittal’s policies, Baffinland should develop and implement an explicit human rights policy and operating procedures in accordance with the UN Guiding Principles on Business and Human Rights and the emerging best practices of the mining industry.

    2. As human rights were not explicitly addressed and integrated into the FEIS for the Mary River project, Baffinland should consider undertaking a stand-alone human rights impact assessment at an appropriate moment in the future (e.g. at the end of the “Early Revenue Phase”) in order to assess actual impacts of its operations.

    Related Resources and Links

    Baffinland Sustainable Development Policy: http://www.international.gc.ca/trade-agreements-accords-commerciaux/ds/csr-strategy-rse-stategie.aspx?view=d.

    ArcelorMittal corporate responsibility human rights performance 2012:
    http://www.arcelormittal.com/corp/corporate-responsibility/governance-and-ethics/human-rights/performance

    ArcelorMittal corporate responsibility 2012 report (human rights section pp.7-8):
    http://www.arcelormittal.com/corp/~/media/Files/A/ArcelorMittal/corporate-responsibility/publications-and-reports/archive/global-corp-resp-reports/ArcelorMittal-CR-Report-2012singlev2.pdf

    The UN Guiding Principles on Business and Human Rights: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

    OHCHR, Corporate Responsibility to Respect Human Rights: An Interpretive Guide: http://www.ohchr.org/Documents/Issues/Business/RtRInterpretativeGuide.pdf

    OHCHR, Guide on How to Develop a Human Rights Policy: http://www.ohchr.org/Documents/Publications/DevelopHumanRightsPolicy_en.pdf

    The Business and Human Rights Resource Centre has launched a Portal dedicated to the UN Guiding Principles, which includes Commentaries; Implementation and Uses of the Guiding Principles; Events; History of the Guiding Principles; and Additional Materials: http://www.business-humanrights.org/Documents/UNGuidingPrinciples

    OECD Guidelines on Multinational Enterprises, including provisions relating to human rights due diligence, were adopted by OECD Member States on May 25, 2011: http://www.oecd.org/document/19/0,3746,en_21571361_44315115_48029523_1_1_1_1,00.html

    ISO 26000: Social Responsibility includes commitments to human rights, labour practices, environment, fair operating practices, consumer issues and community involvement and development: http://www.iso.org/iso/iso_catalogue/management_and_leadership_standards/social_responsibility/sr_discovering_iso26000.htm

    The revised IFC Sustainability Framework and Performance Standards, including acknowledgement of business responsibility for human rights (and recommendation of human rights due diligence for high risk projects) came into effect on January 1, 2012. See the IFC fact sheet with information about the revised framework and standards: http://www.ifc.org/ifcext/policyreview.nsf/AttachmentsByTitle/Updated_SustainabilityFramework_Fact-sheet/$FILE/Updated_SustainabilityFramework_Fact-sheet.pdf

    International Council on Mining and Metals (ICMM): “Human Rights in the Mining and Metals Industry: Overview, Management Approach and Issues,” (2009) ICMM, “Human Rights in the Mining and Metals Industry: Resolving Local Level Concerns and Grievances,” (2010); ICMM, “Integrating Human Rights into Corporate Risk Management Processes,” (2012). See: http://www.icmm.com/page/84154/our-work/projects/articles/business-and-human-rights

    Government of Canada’s International CSR strategy, “Building the Canadian Advantage: A Corporate Social Responsibility Strategy for the Canadian International Extractive Sector”: http://www.international.gc.ca/trade-agreements-accords-commerciaux/ds/csr-strategy-rse-stategie.aspx?view=d.
     

    24-06-2013