Access to Financial Remedies for Communities affected by Mining Abuses in Africa
Highlighting the interplay between mining corporations and local communities, this study by Attiya Waris from the University of Nairobi examines the challenges faced by affected communities in accessing financial remedies due to human rights abuses by mining companies in Africa. The research delves into the characteristics of effective remedies and offers recommendations to improve accountability and justice.
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ACCESS TO FINANCIAL REMEDIES BY AFFECTED COMMUNITIES THE RESULT OF BUSINESS RELATED HUMAN RIGHTS ABUSES BY MINING CORPORATIONS IN AFRICA 1 8/23/2024 Attiya Waris, Law School, University of Nairobi
Contents 2 1. Introduction 2. Interplay Between Mining Companies and Local Communities with Respect to Abuse of Rights 3. Access to Financial Remedies 4. Recommendations 5. Conclusion 8/23/2024 Attiya Waris, Law School, University of Nairobi
Characteristics of a Remedy Transparency Accountability Responsibility Effective Efficient Fair Just 3 8/23/2024 Attiya Waris, Law School, University of Nairobi
1. Introduction 4 1.1. Understanding the Land Rights that a Community Leader can give to an Individual or Entity 1.2. Understanding the Structures of Mining Companies in Africa and Globally 1.3. Mapping the African Landscape 8/23/2024 Attiya Waris, Law School, University of Nairobi
THE ACTORS 5 1.3.1. 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. The Individual (National or Non-National) 8/23/2024 Attiya Waris, Law School, University of Nairobi
2. Mining Company Abuses and Communities 6 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 8/23/2024 Attiya Waris, Law School, University of Nairobi
WHAT IS ACCESS TO REMEDY 7 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. 8/23/2024 Attiya Waris, Law School, University of Nairobi
The Spectrum of Access to Remedies 8 Ethics Hotline (internal - corporate) Grievance Mechanism (internal) Site Community Dialogue (non - judicial) Community Mediation (non - judicial) Community Court (judicial) Traditional Methods of Dispute Resolution Local Community Dialogue (non - judicial) National Mediation (non - judicial) National Courts (judicial) National International Mediation, e.g. OECD NCP, World Bank, CAO (non - judicial) Home Country Court (judicial) International Human Rights Courts, e.g. Inter-American Commission on Human Rights (judicial) International 8/23/2024 Attiya Waris, Law School, University of Nairobi
3. Access to Financial Remedies 9 3.1. Judicial Mechanisms 3.2. Non Judicial Mechanisms 3.3. Existing Community Grievance Mechanisms 3.4. Financial Remedies 8/23/2024 Attiya Waris, Law School, University of Nairobi
3.1. Judicial Remedies 10 injunctions, damages/compensation, revocation/cancellation of mining licences, conservatory orders, prohibitory orders criminal sanctions. 8/23/2024 Attiya Waris, Law School, University of Nairobi
THE CHALLENGES 11 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. 8/23/2024 Attiya Waris, Law School, University of Nairobi
3.2. Non-judicial Remedies 12 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 8/23/2024 Attiya Waris, Law School, University of Nairobi
The Challenges 13 Duplication Enforceability Applicability 8/23/2024 Attiya Waris, Law School, University of Nairobi
3.3. Existing Community Grievance Mechanisms 14 information facilitation negotiation mediation/conciliation arbitration investigation adjudication 8/23/2024 Attiya Waris, Law School, University of Nairobi
3.4. Fiscal remedies 15 Choosing the Forum Measuring the harm Asking for restitution Enforcing the remedy 8/23/2024 Attiya Waris, Law School, University of Nairobi
Measuring the Harm 16 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 8/23/2024 Attiya Waris, Law School, University of Nairobi
Choice of Forum 17 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 8/23/2024 Attiya Waris, Law School, University of Nairobi
Asking for restitution 18 Parent company can be held responsible for subsidiary (Vedanta (Zambia in UK) barriers to accessing justice in Zambia Legal fees 8/23/2024 Attiya Waris, Law School, University of Nairobi
The Challenges 19 Corruption Poor laws The parallel systems The legally recognised system v the community system State and business mix Lobbies: national and international 8/23/2024 Attiya Waris, Law School, University of Nairobi
4. Recommendations 20 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 8/23/2024 Attiya Waris, Law School, University of Nairobi
4. Recommendations 21 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. 8/23/2024 Attiya Waris, Law School, University of Nairobi
Changes the Laws 22 Country by country reporting of corporate records Beneficial ownership of corporations Freedom of information laws Ending tax havens Treaty on business and human rights 8/23/2024 Attiya Waris, Law School, University of Nairobi
5. Conclusion: What Should We do to Improve Access to Remedy 23 The characteristic of the remedy: fair, just, efficient, effective, accountable, transparent, responsible Advocacy Campaigning Research Any Other Issues 8/23/2024 Attiya Waris, Law School, University of Nairobi
Weebale! Murakoze Chane! Asante! Wazviita Ngiyabonga! Shukran! Merci! E dupe! Thank you! Obrigado! 24 8/23/2024 Attiya Waris, Law School, University of Nairobi
