ACCESS TO FINANCIAL REMEDIES BY AFFECTED COMMUNITIES

1. ACCESS TO FINANCIAL REMEDIES BY AFFECTED COMMUNITIES THE RESULT OF BUSINESS RELATED HUMAN RIGHTS ABUSES BY MINING CORPORATIONS IN AFRICA Attiya Waris, Law School, University of Nairobi

2. Contents 1. Introduction • Interplay Between Mining Companies and Local Communities with Respect to Abuse of Rights 3. Access to Financial Remedies • Recommendations • Conclusion Attiya Waris, Law School, University of Nairobi

3. Characteristics of a Remedy • Transparency • Accountability • Responsibility • Effective • Efficient • Fair • Just Attiya Waris, Law School, University of Nairobi

4. 1. Introduction 1.1. Understanding the Land Rights that a Community Leadercan give to an Individual or Entity 1.2. Understanding the Structures of Mining Companies in Africa and Globally 1.3. Mapping the African Landscape Attiya Waris, Law School, University of Nairobi

5. THE ACTORS 1.3.1. The Individual (National or Non-National) • Occupational communities • Residential communities • Indigenous communities 1.3.2. The Corporation (Domestic or Foreign) • Fully private and domestically owned by nationals of the state; • Fully private but partially foreign and partially domestically owned by nationals; • Partially private and partially government owned; • Partially private and partially publicly owned through shareholders on public stock exchanges; and • Fully public and government owned. Attiya Waris, Law School, University of Nairobi

6. 2. Mining Company Abuses and Communities 2.1. Displacement of communities from their land, destruction of forests, loss of livelihood and indigenous rights 2.2. Environmental degradation 2.3. Insufficient community consultation and compensation Attiya Waris, Law School, University of Nairobi

7. WHAT IS ACCESS TO REMEDY • adequate, effective and prompt and the compensation to be paid is to be proportional to the gravity of the violations and the harm suffered. • In referring to the UN Guiding Principles, Zerk posits that an effective remedy is not limited to financial compensation, but can potentially take a number of other substantive forms, such as: • apologies • Restitution • Rehabilitation • punitive sanctions • measures to prevent future harm such as injunctions and guarantees of non-repetition. Attiya Waris, Law School, University of Nairobi

8. The Spectrum of Access to Remedies Attiya Waris, Law School, University of Nairobi

9. 3. Access to Financial Remedies 3.1. Judicial Mechanisms 3.2. Non Judicial Mechanisms 3.3. Existing Community Grievance Mechanisms 3.4. Financial Remedies Attiya Waris, Law School, University of Nairobi

10. 3.1. Judicial Remedies • injunctions, • damages/compensation, • revocation/cancellation of mining licences, conservatory orders, prohibitory orders • criminal sanctions. Attiya Waris, Law School, University of Nairobi

11. THE CHALLENGES • fragmented, poorly designed or incomplete legal regimes; • lack of legal development; • lack of awareness of the scope and operation of regimes; structural complexities within business enterprises; • CORRUPTION • problems in gaining access to sufficient funding for community claims; and • a lack of enforcement. Attiya Waris, Law School, University of Nairobi

12. 3.2. Non-judicial Remedies • The advent of corporate social responsibility: Chevron introduced the Global Memorandum of Understanding (GMoU) Nigeria • Setting up of complaints mechanisms: ombudsmen • Creating room for stakeholder engagements • Rise in alternative disputes resolution (ADR): national human rights institutions, labour tribunals, National Contact Points Attiya Waris, Law School, University of Nairobi

13. The Challenges • Duplication • Enforceability • Applicability Attiya Waris, Law School, University of Nairobi

14. 3.3. Existing Community Grievance Mechanisms • information facilitation • negotiation • mediation/conciliation • arbitration • investigation • adjudication Attiya Waris, Law School, University of Nairobi

15. 3.4. Fiscal remedies • Choosing the Forum • Measuring the harm • Asking for restitution • Enforcing the remedy Attiya Waris, Law School, University of Nairobi

16. Measuring the Harm • damage to property • loss of income and amenity as a result of environmental pollution (fish, hunting) • Threats from security • dust from trucks, daily blasts and noise pollution • labour issues • lowered standard of living • Cultural loss Attiya Waris, Law School, University of Nairobi

17. Choice of Forum • Courts: Parent and its subsidiary • World Bank Inspection Panel • IFC also established a complaints mechanism: the Compliance Advisor/Ombudsman (CAO) • European Bank for Reconstruction and Development (EBRD) and the Asian Development Bank (ADB), • National Contact Points of the OECD Guidelines for Multinational Enterprises • Canadian Extractive Sector Corporate Social Responsibility Counsellor Attiya Waris, Law School, University of Nairobi

18. Asking for restitution • Parent company can be held responsible for subsidiary (Vedanta (Zambia in UK) • barriers to accessing justice in Zambia • Legal fees Attiya Waris, Law School, University of Nairobi

19. The Challenges • Corruption • Poor laws • The parallel systems • The legally recognised system v the community system • State and business mix • Lobbies: national and international Attiya Waris, Law School, University of Nairobi

20. 4. Recommendations 4.1. African states Ought to • Harmonise their policies and regulatory frameworks with respect to financial remedies. • Develop monitoring mechanisms and administrative systems to assess financial remedies • Foster a transparent and accountable mining sector where a database is created that shows the compensation packages paid to communities so as to establish a precedent. • Develop a mining regime that provides for consultation with stakeholders in the process of considering applications for mineral rights and provide local communities a role in the management of mineral resources. • Provide pro bono legal services for indigent communities affected by the business related human rights violations of corporations to seek for financial remedies as well as an office to report complaints that must be actively investigated. • Compensation agreements must not only be in English but translated in a language that affected communities understand. • Make customary land rights equal in weight and stature to "formal", certified land Attiya Waris, Law School, University of Nairobi

21. 4. Recommendations 4.2. Corporations Ought to • Make a litigation fund available to the local community held in trust in case of criminal or unethical behaviour where the community needs to seek legal redress. • Make a large lump sum deposit in trust before it is allowed to operate to ensure that compensation is available in case of criminal or unethical behaviour. 4.3. Communities Ought to • Be educated on the process of land rights negotiation. • Ensure agreements are in writing and compensation documented. • Ensure all government–MNE contracts are public and that the community is made aware of these contracts before negotiations commence. Attiya Waris, Law School, University of Nairobi

22. Changes the Laws • Country by country reporting of corporate records • Beneficial ownership of corporations • Freedom of information laws • Ending tax havens • Treaty on business and human rights Attiya Waris, Law School, University of Nairobi

23. 5. Conclusion: What Should We do to Improve Access to Remedy • The characteristic of the remedy: fair, just, efficient, effective, accountable, transparent, responsible • Advocacy • Campaigning • Research • Any Other Issues Attiya Waris, Law School, University of Nairobi

24. Weebale! MurakozeChane! Asante! WazviitaNgiyabonga! Shukran! Merci! E dupe! Thankyou! Obrigado! Attiya Waris, Law School, University of Nairobi