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  • Human Rights Assessment

    uploaded by: Gabriela Gamez

    channel: Transparency – Summary

    9. Transparency – Full Finding

    Key message

    Mining companies are expected to do more to be transparent about the money and gifts they give to governments in order to fight corruption and improve the governance and benefits of mining projects. Access to information and transparency are also important human rights based principles. The implementation of strong transparency policies and procedures for the Mary River Mine can help improve human rights impacts because there will be less opportunity for inappropriate spending and more accountability and incentives for positive contributions.

    Overview

    The Government of Canada just announced that it is going to make new disclosure rules that will apply to Canadian mining companies. The Mining Association of Canada has helped developed a framework for these new disclosure rules. ArcelorMittal also has strong disclosure and anti-corruption policies. The standards for transparency and disclosure for Baffinland are going to be increasingly stringent over the coming years.

    All parties that administer the economic benefits that will flow from the mine should also set a good example about transparency and anti-corruption. This is needed to reinforce public confidence in the contribution of the mine to sustainable development and good governance. Greater disclosure and access to information about economic payments also helps monitoring and assessment of positive human rights impacts from the mine

    Concerns have been raised in the public hearings about how much of the IIBA benefits will flow to communities. Last summer, some questions were raised about members of the QIA accepting travel to the London Olympics at Baffinland’s expense. Given their important role in administering royalties and IIBA payments, the Designated Inuit Organizations should develop their own policies about transparency and anti-corruption that takes into account their special status. This is an important piece of the puzzle for ensuring that the Mary River Mine and future mining projects in Nunavut make strong contributions to sustainable development and human rights.

    Human rights standards

    Human rights standards related to transparency and access to information are derived from Article 19 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

    The international human rights standards related to access to information and freedom of expression are also relevant to the issue of prior and on-going consultation with all stakeholders (discussed in Finding 5). Meaningful consultation is premised on the provision of adequate information and the respect of stakeholders’ right to freely express their opinions and concerns. According to general human rights principles, transparency and access to information is a component of and indicator for respecting the full range of all other international human rights.

    Canadian Legal Standards

    On June 12th 2013, Prime Minister Stephen Harper announced that the Government of Canada will be establishing new mandatory reporting standards for Canadian extractive companies with a view to enhancing transparency on the payments they make to governments.

    The new reporting regime will be established with a view to: improving transparency; ensuring Canada’s framework is consistent with existing international standards and aligned with other G-8 countries; ensuring a level playing field for companies operating domestically and abroad; enhancing investment certainty; helping reinforce the integrity of Canadian extractive companies; and, helping to ensure that citizens in resource-rich countries around the world are better informed and benefit from the natural resources in their country.

    Over the coming months, the Government of Canada will consult closely with provincial and territorial counterparts, First Nations and Aboriginal groups, industry and civil society organizations on how to establish the most effective regime.

    It is anticipated that the reporting regime will seek to enhance transparency and accountability around material payments by extractive companies to all levels of governments domestically and internationally, including taxes, license fees and other receipts.

    The mandatory reporting initiative is in keeping with the United Kingdom’s priority of transparency put forward at the G-8 Lough Erne Summit.

    Extractive Industry Transparency Initiative

    The EITI Principles provide the cornerstone of the initiative. They are:

    1. We share a belief that the prudent use of natural resource wealth should be an important engine for sustainable economic growth that contributes to sustainable development and poverty reduction, but if not managed properly, can create negative economic and social impacts.
    2. We affirm that management of natural resource wealth for the benefit of a country’s citizens is in the domain of sovereign governments to be exercised in the interests of their national development.
    3. We recognise that the benefits of resource extraction occur as revenue streams over many years and can be highly price dependent.
    4. We recognise that a public understanding of government revenues and expenditure over time could help public debate and inform choice of appropriate and realistic options for sustainable development.
    5. We underline the importance of transparency by governments and companies in the extractive industries and the need to enhance public financial management and accountability.
    6. We recognise that achievement of greater transparency must be set in the context of respect for contracts and laws.
    7. We recognise the enhanced environment for domestic and foreign direct investment that financial transparency may bring.
    8. We believe in the principle and practice of accountability by government to all citizens for the stewardship of revenue streams and public expenditure.
    9. We are committed to encouraging high standards of transparency and accountability in public life, government operations and in business,
    10. We believe that a broadly consistent and workable approach to the disclosure of payments and revenues is required, which is simple to undertake and to use.
    11. We believe that payments’ disclosure in a given country should involve all extractive industry companies operating in that country.
    12. In seeking solutions, we believe that all stakeholders have important and relevant contributions to make – including governments and their agencies, extractive industry companies, service companies, multilateral organisations, financial organisations, investors, and non-governmental organisations.

    Implementation of EITI must be consistent with the criteria below:

    1. Regular publication of all material oil, gas and mining payments by companies to governments (“payments”) and all material revenues received by governments from oil, gas and mining companies (“revenues”) to a wide audience in a publicly accessible, comprehensive and comprehensible manner.
    2. Where such audits do not already exist, payments and revenues are the subject of a credible, independent audit, applying international auditing standards.
    3. Payments and revenues are reconciled by a credible, independent administrator, applying international auditing standards and with publication of the administrator’s opinion regarding that reconciliation including discrepancies, should any be identified.
    4. This approach is extended to all companies including state-owned enterprises.
    5. Civil society is actively engaged as a participant in the design, monitoring and evaluation of this process and contributes towards public debate.
    6. A public, financially sustainable work plan for all the above is developed by the host government, with assistance from the international financial institutions where required, including measurable targets, a timetable for implementation, and an assessment of potential capacity constraints.

    For further information about the EITI Requirements and Rules: http://eiti.org/eiti/requirements

    Mining Association of Canada

    Mining Association of Canada is part of the Canadian Extractive Resource Revenue Transparency Working Group, along with the Prospectors and Developers Association of Canada (PDAC), Publish What You Pay (PWYP) Canada and the Revenue Watch Institute (RWI). The Working Group was formed to develop a framework for the mandatory disclosure of extractive company payments to governments where Canadian companies operate.

    In June 2013, the Working Group released “Recommendations on Mandatory Disclosure of Payments from Canadian Mining Companies to Governments,” which state the following:

    “The Working Group recommends disclosure requirements for Canadian mining companies be mandatory, not voluntary, to ensure that all relevant information is available and accessible to stakeholders, and that companies cannot opt out of compliance. After consideration of the most appropriate venue, or “home,” for Canadian disclosure requirements, the Working Group recommends the implementation of a mandatory disclosure framework through securities regulation with a strong equivalency provision to align with other jurisdictions such as the US and the EU. This recommendation aligns with the US model (where such disclosure is regulated by the US Securities and Exchange Commission (“SEC”) and recognizes the existing powers of Canadian securities administrators to regulate the disclosures of public entities in Canada.”

    “A consequence of establishing a reporting regime in securities requirements is that disclosure will be mandatory only for public companies. However, the benefits of this approach are clear. Such a regime will take advantage of the experience of the Canadian securities administrators in receiving and managing disclosure filings, and likely require fewer start-up costs than a new reporting and compliance regime. In addition, the use of securities regulation would mean that the disclosure requirements recommended here would extend to foreign companies who seek to raise capital in Canadian markets.”

    The approach suggested by the Working Group would mean that Baffinland (which is not a publicly-listed company) would not be covered by the mandatory disclosure requirements. However, it may still choose to voluntarily disclose its payments to different levels of government as a result of its corporate policies and commitments.

    Company policies and commitments

    Arcelor Mittal

    From ArcelorMittal's statement of support to the EITI:

    In 2009, ArcelorMittal formalised its support of the Extractive Industries Transparency Initiative (EITI), after being an active participant of the EITI in Liberia since May 2007. The EITI’s principles regarding the prudent use of natural resources, transparency, accountability, and stakeholder dialogue complement ArcelorMittal's own corporate values and corporate responsibility policies.

    Baffinland sustainability policy

    4.0 Transparent Governance

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

    We ensure that adequate resources are available and that systems are in place to implement risk-based management systems, including defined standards and objectives for continuous improvement.

    We measure and review performance with respect to our environmental, safety, health, socio-economic commitments and set annual targets and objectives.

    We conduct all activities in compliance with the highest applicable legal requirements and internal standards

    We strive to employ our shareholder’s capital effectively and efficiently. We demonstrate honesty and integrity by applying the highest standards of ethical conduct.

    Additional Information and Resources:

    Government of Canada press release “Canada commits to enhancing transparency in the extractive sector” and backgrounder: http://pm.gc.ca/eng/media.asp?id=5525

    G8 Lough Erne Leaders’ Communiqué, paragraphs 34 to 42: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/207771/Lough_Erne_2013_G8_Leaders_Communique.pdf

    Resource Revenue Transparency Working Group (including Mining Association of Canada and Prospectors and Developers Association of Canada)
    • Draft recommendations on mandatory reporting requirements: http://www.mining.ca/www/media_lib/Press_Release/2013/RRTWGDraftforConsultationJune2013.pdf
    • Backgrounder to draft recommendations: http://www.mining.ca/www/media_lib/Press_Release/2013/RRTWGBackgrounderJune2013.pdf

    ICMM 'Position Statement on Transparency of Mineral Revenues' that is supportive of EITI, but also considers the broader aspects of revenue transparency. See: http://www.icmm.com/page/14652/position-statement-on-transparency-of-mineral-revenues

    Extractives Industry Transparency Initiative requirements: http://eiti.org/eiti/requirements


     

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    uploaded date: 09-07-2013

  • Human Rights Assessment

    uploaded by: Gabriela Gamez

    channel: Access to Remedies – Summary

    10. Access to Remedies – Full Finding

    Key message

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

    Overview

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

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

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

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

    International Legal Standards

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

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

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

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

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

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

    Commentary

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

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

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

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

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

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

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

    Canadian Legal Standards

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

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

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

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

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

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

    Company policies and commitments

    Arcelor Mittal

    Human Rights Policy

    6. Implementation

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

    External Stakeholder Engagement Procedure

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

    Baffinland sustainability policy

    Section 4.0 – Transparent Governance

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

    Section 9.0 – Employee Relations

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

    Mary River FEIS commitments

    Human Resource Management Plan – Appendix

    5.2 – Employee Communication

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

    9.1 – Employee Concerns

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

    Stakeholder Engagement Plan

    Section 6.0. – Complaint Management Procedure

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

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

    6.1 – Complaints Procedures

    Baffinland management will follow these procedures to manage complaints:

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

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

    NIRB Project Certificate

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

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

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

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

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

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

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

    Additional References

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

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

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

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

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

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

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    uploaded date: 05-07-2013