Indigenous Peoples Links (PIPLinks) piplinks

EIDHR - Training on Monitoring International MechanismsJuly 2010Module 4International corporations, engagement and examples Indigenous Peoples Links (PIPLinks) http://www.piplinks.org

Plan of presentation • Advocacy with companies directly • Advocacy with private financiers and insurers • Advocacy with public financiers and insurers • Legal action on companies at state level • Voluntary complaints mechanisms (OECD Guidelines) • Networking (in home country of company & globally)

1a. Company advocacy – what is it? • Meetings & writing directly with company staff & board (even if low expectation, it needs to be done to create a record of protest & to show you have tried engagement) • Linking with campaign groups to bring pressure to bear on the company (with letters & petitions) • Linking with shareholder action groups, so actions can be taken by shareholders at AGMs (including community representatives attending)

1b. Company advocacy – how it works? • Re communicating with company, ensure you get right contact (normally CEO). If meeting be careful to make it collective and recorded. Also company lawyers will read communications, so make sure it is facts-based to avoid SLAPP • Re linking with campaign and shareholder action groups you ideally need a public company with a group already in the home country of the company (or a network that can form one) • Activist (“dissident”) shareholder groups can then pass your letters/complaints to the company, seek meetings with the company as shareholders (more difficult to ignore), ask questions & sort attendance at AGMs & finally force a shareholder resolution at AGM (this is a big ask)

1c. Company advocacy – positive aspects • Dealing with the company can have fast results as the company is real decision-maker. They will understand the risks to their reputation of problems (works better on bigger companies – some juniors don’t have reputations to worry) • It may be that head-office, board really do not know what is happening on the ground, and may take on board considerations of human rights violations. Also community relations staff may provide leverage within the company (especially at head office level) • Shareholder action groups have direct access to company, and as they, in theory, own it they should be listened to

1d. Company advocacy – negative aspects • Company is unlikely to agree to demands willingly unless it positively affects, or doesn’t affect, their bottom line. If a community wants to say no to a project, that is a problem • Governments often support corporations • Any shareholder activists are likely to be in a real minority, so difficult to persuade other shareholders (especially if they see it as not in their interest) • Questions at AGMs etc. are normally better for raising publicity. It’s unlikely to change company policy. A shareholder resolution is another method. But time-consuming and difficult to do – it requires a minimum of shareholder support

1e. Company advocacy – meeting examples • Has anyone had any experience of approaching companies directly? • Does anyone know who runs the company, and where it is based (not just the subsidiary but head office)? • How would you approach the company, and who would you approach?

1f. Company advocacy – previous examples • Partizans – a shareholder dissident group of Rio Tinto has been voicing protests at the AGM since 1980s. It has high-lighted a number of issues, got good press coverage of visiting community leaders and helped cause a drop in company share prices at times • Datu Victor Aying travelled to the BHP Billiton AGM in London in October 2007. He also attended a meeting in UK parliament, met other activists and NGOs, got press coverage in UK & Philippines.

2a. Private finance – what is it? • A campaign can target as many of those with equity (shareholders) as practical • It can also target those who are loaning the company money – either generally or for the project specifically • You can also target insurers and those investing in subsidiaries and/or suppliers (e.g. boycott San Miguel beer if they invest in mining) • Work out the scope of your campaign or ambition – are you trying to get people to disinvest or to influence the company?

2b. Private financiers – how it works Cornerhouse uses the following as a checklist before deciding on a campaign to influence investors: • Is the company publicly listed? Is it private, it will most likely not have investors that can be identified. • Is its finance from mainstream institutions such as banks, which might be influenced? • Is the project marginal on financial grounds? • Is this the best option for influencing the project: are other avenues closed or difficult? • What is the level and type of financial institution involved? Will the company be responsive to a campaign? • What are the synergies with other kinds of campaigning? • Can the organization’s resources be more effectively used elsewhere?

2c. Private finance – positive aspects • Investors can see it as in their interests to be informed of your problems (in case they will lose money later if there are social or environmental problems) • There are a growing number of ethical investment funds (& industry bodies), and supporting NGOs in different countries who could be allies. • There are often a great variety of different investors in a project, so some headway can be made by copying in a number of them

2d. Private finance – negative aspects • In the end you will most likely have to make a business case, even for ethical investors. They also care about their bottom line (in UK it is argued pension funds are not all to disinvest for moral reasons, only for financial reasons). However, good business cases can often be made if the project is clearly not wanted or legally sound) • The work can be intensive, time-consuming and slow, especially where there a large number of different investors or types of investors (or where private capital, or the company owners, are majority of shareholders)

2e. Private finance – meeting examples • Has anyone had any experience of approaching investors directly? • Has anyone thought of how to approach investors? • Would you seek to get backers to disinvest or to influence the company while keeping their stake in it

2f. Private finance – previous examples • There were successful meetings with investors, and ethical agencies, during the visit of Fr Edwin Gariguez and Ramil Baldo to Norway over Intex. Subsequent campaigns have targeted a key Norwegian investor, who has had to defend himself on national TV • There has been a huge and successful campaign to disinvest from UK-based Vedanta, because of its activities in Orissa, India (on the land of the Dongria Kondh). The Norwegian Pension Fund, Church of England and others have publicly disinvested • The WGMP is working on a campaign targeting investors over the indigenous right to Free, Prior and Informed Consent. A coordinated plan has been drawn up to engage companies and investors

3a. Public finance – what is it? • Multilateral investment banks include the World Bank (with its private lending arm the International Finance Corporation or IFC), the Asian Development Bank among others • The World Bank has a development role and huge influence, but denies it has any human rights obligations. It has also rejected the recommendations of a study it commissioned in 2002, the Extractive Industries Review (EIR), including respecting FPIC • The IFC has “safeguards” (rules for investing in companies, covering the environment and social issues), which industry is using as a standard. They are currently being reviewed – there is a big argument to get Bank to recognise human rights (& FPIC) • The IFC currently has no investment in mining in the Philippines (although it has announced support for Mindoro Resources)

3b. Public finance – how it works • As multi-lateral development banks use tax-payer’s money to invest, supposedly to support development (alleviate poverty), tax-payers should have a say. • In the World Bank, money is donated mostly from Western countries & ‘control’ of the bank is in the hands of Government board members of those donor countries. Citizens of those countries can lobby the bank • The Bank has an ombudsman’s offices – for IFC & MIGA it is the Compliance Advisor Ombudsman (CAO) - http://www.cao-ombudsman.org/

3c. Public finance – positive aspects • In theory as this is development money from tax-payers it should not be used to make mines-affected communities poorer and destroy the environment • There are normally official bank complaints mechanisms – like the CAO. The CAO is independent (reporting directly to the Bank President), and has a clear & well-structured complaints mechanism, but it initially tries negotiation. However it will investigate and will say if the Bank is not in compliance with its own guidelines • If political risk insurance is used it can also bring in concerned tax payers from the home country, and there are many NGOs working on the multilateral development banks

3d. Public finance – negative aspects • It is unlikely there will be multilateral bank financing or political risk insurance in a given project. It tends to only be given for the largest projects, and World Bank direct involvement in larger projects is becoming less • Even though the Banks have complaints mechanisms they tend to be time-consuming, lengthy and without a great deal of real sanction • Government Export Credit Guarantee organisations have no complaints mechanism & can be opaque in knowing to whom you should complain

3e. Public finance – Meeting examples • Has anyone had any experience of public financing or government funding/subsidy for a project? • How would you get more information on whether there is public funding for a project? • How would you then campaign on it?

3f. Public finance – previous examples • Indigenous peoples at Glamis Gold’s controversial Marlin Mine in Guatemala got a review of health and environmental issues through the CAO • At Newmont’s Yanacocha gold mine in Peru, the CAO intervened over a mercury spill & also set up a round-table with communities after a complaint over various conflict issues, especially access to water • MIGA withdrew its political risk insurance for Freeport McMoRan’s Grasberg mine in PNG after serious environmental & social issues were raised (although by then the mine was so advanced the company could continue)

4a. State legal action – what is it? • Apart from taking legal action in your own country you can consider – if you have a suitable case - legal civil action against a company in its home country • You could also consider legal action through a stock exchange it is registered on (if it is potentially in breach of the rules of that stock exchange) • Each home country’s jurisdiction will be different, so there may be better or worse opportunities depending on the case you have, the country & the level of support you can get • There may also be opportunities for using other international courts (e.g. European Court of Human Rights)

4b. State legal action – how it works • You will need good legal advice – both within your country and the country where you want to take the action • Generally you will need to prove why you are taking action in the home country, and not your own. (This means proving that you cannot get justice in your own country. Very often this means you will need to have taken legal action in your own country – which has stalled or failed because of problems with the courts) • Point

4c. State legal action – positive aspects • Legal action, if won, can bring real punishments to a company, and stop a project. A project could also be ordered suspended while the court case continues • It can be possible to get legal and financial support. There are law firms who specialise in this type of activity (e.g. Leigh Day in UK or EarthRights International in US) who offer pro bono (free) advice • There are opportunities through specific legislation like the US Alien Claims Tort Act (ACTA) to follow human rights cases nationally

4d. State legal action – negative aspects • Cases tend to be very serious, and need to be well documented. They can only be taken once the ‘crime’ has happened • There are many legal obstacles to pursuing a case, and various objections could be placed in your way. You may need to ‘pierce the corporate veil’ (prove that a parent company is responsible for local issues). Also, much of the law in this area is un-tested • It can be a very long process, with potentially many stages and appeals. Even if a case is winnable it may be possible to lose the case to get costs covered (which would stop the case)

4e. State legal action – meeting examples • Has anyone had any experience of legal action (ideally overseas, but also in the Philippines)? • What opportunities are there for legal action? • How would you go about getting advice on overseas legal action?

4f. State legal action – previous examples • In 1997, 13 Burmese villagers filed a suit against Unocal under ACTA over forced labour on building a pipeline. The case was settled in 2004 • In 2009, 3 Ecuadorian indigenous peoples filed a suit against the Toronto Stock Exchange for violence committed by Ascendent Copper’s security guards. It is currently under appeal • In 1997, a suit was filed by mine workers against the Cape Asbestos company in South Africa over asbestos poisoning, and in 2000 were allowed to get legal aid in UK. The case was settled before it came to court

5a. Voluntary complaints – what is it? • There have been a large number of voluntary mechanisms brought in. They include… • UN Global Compact, set up in 2000, and sets out principles that signed-up corporations are asked to abide by voluntarily – it has no mandate or resources to conduct investigations • Equator principles are used by the Equator Banks as a voluntary mechanism for investment, following IFC safeguards – it also has no complaints mechanism • Main one we will concentrate on are OECD Guidelines on Multinational Enterprises

5b. Voluntary complaints – what is it? • OECD Guidelines on Multinational Enterprises were adopted in 1976 as one part of the OECD Declaration on International Investment and Multinational Enterprises • All 29 OECD member countries have endorsed the revised Guidelines (2000) and more importantly enhanced implementation procedures • The Guidelines are one of the few voluntary mechanisms that make reference to the Universal Declaration of Human Rights – so human rights complaints can be made (as well as ones on the environment, bribery and others). They will hear complaints from non-OECD complainants about home country companies

5c. Voluntary complaints – how it works • Each country has their own mechanism for implementing the OECD Guidelines. This is done by a National Contact Point (NCP) • The NCPs live inside a relevant government department. Different countries have different levels of implementation and track records with regard to cases • There is an agreed general process, with more guidelines from the relevant NCP. The guidelines and more information is available from http://www.oecd.org/daf/investment/guidelines

5d. Voluntary complaints – positive aspects • There is a clear mechanism for complaints, often (depending on NCP) with set time-limits for responses to ensure it can’t be stalled. It is meant to be easy, and does not need involvement of lawyers (although advice is good!) • It allows for human rights-based complaints, among others • There are a large number of groups with experience of, and supporting, complaints. There is an international group, OECD Watch, who can offer advice (& make critiques of the Guidelines themselves)

5e. Voluntary complaints – negative aspects • It is a voluntary mechanism. Companies do not have to engage, and if they don’t the worst that will happen is a public sanction (as happened to Vedanta in UK) • The purpose of it is to reach resolution. The NCP will often try to arrange negotiation first, and only where it is clearly not possible will they move towards making public statements or recommendations • Especially where there is no time limit it can be a long and drawn out process, involving much written input • Much of the complaints will be in writing, and where possible need written evidence & affidavits, so the NCP can as best as possible verify there is a genuine complaint from afar

5f. Voluntary complaints – meeting examples • Has anyone had any experience of a voluntary complaints mechanism? • What aspects of your case could you make a complaint about? • How would you then campaign on it?

5g. Voluntary complaints – previous examples • The main Philippine case is over Intex Resources’ planned nickel mine on Mindoro. • A complaint was jointly filed with the Norwegian NCP by a Norwegian NGO called Future in Our Hands, ALAMIN & PIPLinks in January 2009 • There have been numerous rounds of responses to the complaint, two investigations by the embassy and a meeting with the NCP in Oslo. The NCP has taken up the complaint, and is sending an independent team to investigate. At present it is still on-going.

6a. Networking – what is it? • It is crucial for any international work that you create and maintain good relations with overseas campaigners. This can be with individual groups, but can often most effectively be done with networks • International networks are growing & strengthening – on companies (e.g. Barrick, BHP Billiton, Xstrata…) and across the industry – Mines & Communities, FoE Mining Campaign, Extractives and Indigenous Peoples Network • They exist to share information and experience (to make more informed decisions, and more effectively campaign), and to jointly lobby on key concerns. Links can be made between the local, national and international.

6b. Networking – how it works • The Internet has greatly increased the power of networking, as especially as it can now reach directly to communities. Most materials are now posted on websites, shared via email lists and meetings held with the likes of Skype • More materials are being produced – and attempts made to summarise / bring together different resources and hand-books on websites • Joint campaigns are being agreed, such as the planned Month of Mining Action, ideally in May 2011. These can be used to highlight local cases

6c. Networking – positive aspects • Good networking can dramatically increase the publicity around your campaign. This can build both support nationally, as well as in the home country of the company, and then ideally with company investors • Networks can be excellent places to learn more about issues around mining, a specific company and/or lobbying processes • Networking should be as much about sharing experience between mines-affected communities as gaining information from ‘experts’ • Networks can gain access to other necessities, such as grant funders, technical or legal experts and legislators from home countries

6d. Networking – negative aspects • Networking, if done correctly, can be very time consuming, and international networking very often needs access to the Internet, good language skills and dedicated campaigners in the community (who run the risk of jealousy or being separated from the community) • Networks can be very broad and made up of groups with different perspectives or politics. There can be differences of level of ‘anti-mining’ feelings and many work with or are miners themselves (notably small-scale miners). This can lead to real tensions. • Many Western NGOs, especially environment organisations have their own agendas, and can over-ride the needs of communities (or speak for them without permission). Mining companies work to separate critics out by ‘divide and rule’

6e. Networking – meeting examples • What experiences have you had with national and international mining networking? • When has it been successful and why? • What are the tensions you’ve faced in mining networks & how have you overcome them?

6f. Networking – previous examples • The Mines & Communities network (MAC) is made up over over 30 editors from 17 countries, and runs the website www.minesandcommunities.org. Set up in 2001, it has set out its community-centred manifesto in the London Declaration (revised in 2007) • Partizans has been campaigning since 1978 against Rio Tinto, and has linked with groups across the world pioneering the practice of enabling community representatives to challenge companies at AGMs (more than 100 reps have been at Rio Tinto AGMs since 1981) • FoE International’s mining campaign is working with other networks on a Mining Month of Action, to coincide with the UN Commission on Sustainable Development talking of ‘sustainable mining’

End thought • “the [US] district courts shall have original jurisdiction of any civil action by an alien [foreigner] for a tort [wrongful act] only, committed in violation of the law of nations or a treaty of the United States” - Alien Claims Tort Act 1789

Indigenous Peoples Links (PIPLinks) piplinks