I just had the pleasure of moderating an insightful and rich discussion for the first session of the UN Annual Forum 2022. Our session was titled: ‘Rights Holders at the Centre: New Frontiers in Access to Remedies.’
After thanking the UN Working Group on Business and Human Rights (and Robert McCorquedale in particular) for putting together such a rich panel, I dedicated the panel to John Ruggie, the architect of the UN Guiding Principles on Business and Human Rights, and a wonderful human being, who is no longer with us today.
During the mandate days, John Ruggie would share being at a mine in the Northern Highlands of Peru. This mine was regularly blocked by community members, and on one occasion people got hurt. John asked the community leader: Why did you close down the mine?” The answer he received was: “They wouldn’t listen to us when we came to them with small problems, so we had to create a big one.”
This story really struck John, and access to effective remedies is a cornerstone of the UN Guiding Principles. So we are here to talk about people. And what happens when people (workers, contractors, community members, indigenous communities, etc.) get harmed by companies. How can companies put people back in the situation they would have been in, had the harm not occurred? What does effective remedy look like – and what are pathways to get there?
In the panel, we heard from a range of experts from around the world who are all playing a role in placing rights holders at the centre – from different vantage points and from different geographies.
Claude Kabemba, Executive Director of the Southern Africa Resource Watch (SARW), emphasized the importance of models that put communities at the centre of finding remedies – with rights holders as drivers of the remedy process. He highlighted that these models and grievance mechanisms are especially important in contexts where jurisdictions are not prepared to address environmental and human rights impacts. Supporting remedy, in this context, entails prioritising community knowledge and capacity, as well as importantly providing finances. By providing finances, companies can then help stakeholders work together to design the GMs in question, and avoid an overly legalistic approach.
Ndanga Kamau, an international lawyer specialising in business & human rights, shared with us her experience working on creating and implementing OGMs (operational-level grievance mechanisms) in Africa. Lessons learned include the value for companies of being aware of concerns early on; the need to tailor the design of OGMs to the specific context; considering how remedy can lead to secondary unintended impacts; considering the interface with the local justice system; and the importance of extracting learning from the OGM. Ndanga emphasized that extra-territorial lawsuits that result in OGMs needing to be created may seem far away – but: “don’t wait to find out” – companies should take initiative to create OGMs grounded on these lessons learned now.
Toby Hewitt, General Counsel of Gemfields, shared the process followed to create a community-focused OGM for the company’s ruby mine in Mozambique. Toby emphasized the importance of community and stakeholder engagement, with changes following community member input including creating more accessible access points, increasing the number of face-to-face meetings, enhancing the participation of women as OGM staff and providing more tailor-made assistance for vulnerable groups. Toby underscored the challenge that OGMs might look good on paper, but this does not necessarily translate into practical means for providing remedy. The key is to think flexibly within parameters: The UNGPs acted as “gate posts” to go between, to help ensure that the company could move forward toward creating a system for effective remedy. This means avoiding an overly legalistic approach and moving more toward a dialogue-based system. You can find out more about the Gemfields Mozambican operational-level grievance mechanism here (scroll down).
Brahm Press, the Director of MAP Foundation in Thailand, shared his experience advocating for remedies for Burmese migrant workers who got fired without pay from a factory in Mae Sot, Thailand. The factory was providing goods to Tesco, Starbucks, Disney and NBC Universal. Tesco agreed to play a role in remedy, but the other brands were less forthcoming. Following targeted and coordinated pressure (including with support from the Clean Clothes Campaign, the Business & Human Rights Resource Centre, and the Freedom Fund), the three other brands agreed to play a role in paying full severance pay, as well as the amount owed to the workers for minimum wage violations. Brahm emphasized that this could be viewed as a “fluke or blueprint for future success” – and to enable this to be a success, it means workers should have fundational knowledge of their rights, accessible and safe grievance mechanisms should be available, and companies should be held accountable through binding accords and agreements. You can find out more about this remedy win for the Kanlayanee workers (the name of the factors), here.
José Manuel López, a farmer and small cattle rancher from Mexico, spoke about the work of los Comités de Cuenca Río Sonora (CCRS), seeking remedy for the spill of toxic waste into the Sonora and Bacanuchi Rivers that took place in Mexico in 2014. José Manuel highlighted the kinds of impacts at hand, including the loss of crops, impacts on the availability and quality of water, and the findings of heavy metals in the blood and urine of community members, including children. Although they are fighting for remedy, and they have proposed clear mechanisms to do so (e.g. through medical treatment and water treatment), he underscored the challenge of this when the company seeks to undermine community efforts. You can find out more about this here.
Nestor Caicedo, a community member from Ecuador, has been at the forefront of seeking remedy for impacts related to palm oil in the Barranquilla Commune of San Javier in Ecuador. Nestor described how smallholder farmers and community members had been harmed by a palm oil enterprise, especially regarding occupation of their traditional land. Despite peaceful reclamation of their land, seven members of the community have been sentenced to pay fines for the value of land. Throughout, they have also felt authorities were not listening. Only after writing to the UN Working Group on Business and Human Rights, did the community finally feel supported. Nestor emphasized the importance of community members being masters of their own land and being involved in decision-making. He also made it clear that we are here talking about people with rights who are looking to defend their lands. Much more support is needed to ensure that those with power give a space to communities to give their lives back. You can find the correspondence with the UN Working Group here.
André Porciuncula, who is a National Defender for Human Rights, with the Federal Public Defenders’ Office (DPU) of Brazil, shared how Brazil is supporting community access to remedy. This includes making focal points available for grievances and complaints in communities; supporting dialogues between civil society and private companies and the negoriation of compensation agreements; and providing training to CSOs to enable them to access remedies. He also expressed that remedy goes beyond financial support: “since impacts also affect communities emotionally and spiritually, as well as their relation to their lands.”
So we came full circle. All remarks emphasized the importance of ensuring that rights holders are at the centre, and there are multiple learnings from community members, workers, and companies to build on. With thanks to all the speakers for sharing their insights so openly with us as we kicked off the UN Annual Forum. I hope people enjoy the remainder of the Forum.