At a time when the extractive industry is facing additional scrutiny from NGOs and civil society organizations for its human rights practices, and States are beginning to take concrete steps to improve their laws governing businesses and human rights, the International Corporate Accountability Roundtable (ICAR) and Due Process of Law Foundation (DPLF) have issued guidance on how human rights issues related to the extractive sector should be addressed by States in their National Action Plans (NAPs). The guide, Extractives and National Action Plans on Business and Human Rights can be used as a supplement to National Action Plans on Business and Human Rights Toolkit: 2017 Edition. While the guide is intended for States, extractive companies should take note of the practices and considerations described in the guide to stay up to date with the best practices being discussed by the wider community.
NAPs implement the UN Guiding Principles on Business and Human Rights and other relevant human rights standards at the national level. The UN Human Rights Council called on all Member States to draft NAPs on business and human rights after the adoption of the Guiding Principles in 2011, and 19 States have published NAPs since then. Though States are encouraged to consider all sectors and industries when drafting their NAP, this particular guide is primarily intended for use by States with large amounts of oil, gas, and mineral wealth, extraction (host States) and States where multinational extractive companies are domiciled or registered (home States).
The human rights considerations contemplated in the guide focus mainly on assessing the impact on communities living in areas where extractive projects take place. The guide notes that these affected communities “often face a number of human rights risks and harms, including, but not limited to: forced displacement; violence by public or private security forces; environmental pollution; criminalization of human rights defenders and social leaders; and community division”1 and that these concerns are compounded when the communities are not given a place in the decision-making process regarding whether or not the company should be permitted to operate in the area and how it goes about conducting its operations.
The guide uses two tools to assist States with increasing their focus on human rights aims: an Extractives and NAPs Checklist (Checklist); and an Extractives and NAPs National Baseline Template (Template). The Checklist is used to measure how States have incorporated human rights protections in their NAPs and have considered human rights standards and the consultation of shareholders and the affected communities in the following areas: governance, resources, shareholder mapping, participation, national baseline assessment, scope, content, priorities, transparency, and follow-up. The Template serves to uncover missing human rights protections within States’ NAPs and establish priorities for acting within the human rights sector. It also lists relevant standards and imperative considerations in the following areas: legal and policy framework; expectations, incentives, and sanctions on business; redress and remedy; and context. Per the guide, States can use the tools to “analyze existing legal frameworks and policy responses, and propose new laws, policies, and practices that respond specifically to the human rights risks presented by the extractive industry.”2
The guide comes at a critical time, when the likelihood of human rights abuses in the extractives sector have come under additional public scrutiny and States and extractive companies are being urged to take concrete action to remedy human rights abuses. In September 2017, only months before the introduction of the guide, Transparency International Kenya published a report, Corruption Risk Assessment in Mining Awards, 2017, that concluded cases related to corrupt practices in the mining sector often go unreported due to lack of confidence in the authorities charged with handling the cases.3 The report further found that the issue was exacerbated by a lack of comprehensive complaint-handling mechanisms and a weak legal framework to promote whistleblowing in countries such as Kenya.
Similarly, in Canada, the government is beginning to take concrete steps to improve the human rights compliance of Canadian mining companies operating overseas. The government made an announcement on December 12, 2017 that it plans to create in early 2018 an independent office to oversee Canadian mining, oil and gas companies’ activities abroad. NGOs and environmental and human rights groups have long demanded this action following a history of alleged human rights abuses committed by Canadian companies in Guatemala. There are currently two Canadian companies that are subject to lawsuits in Canada for acts of violence allegedly committed by mine security personnel against locals opposed to extractive projects in Guatemala. Given the history of Canadian mining companies in Guatemala, the Canadian Network on Corporate Accountability (CNCA), which includes groups like MiningWatch Canada, Amnesty International Canada and Above Ground, has been calling for a human rights ombudsperson for the extractive sector for a decade. The office is slated to have an “advisory and robust investigative mandate,” and would fulfill a 2015 campaign promise by Canadian Prime Minister Justin Trudeau’s Liberal Party to appoint an extractive industries’ watchdog.4
Given the international attention to mining operations from civil society organizations and United Nations organs, and the important steps States are taking to improve their practices, extractive companies should pay close attention to Extractives and National Action Plans on Business and Human Rights. Human rights compliance is now more than ever the subject of public scrutiny, and extractive companies should take note of guidance mechanisms designed to improve their human rights impacts.
[1] Due Process of Law Foundation and International Corporate Accountability Roundtable, Extractives and National Action Plans (NAPs) on Business and Human Rights, pg. 4. Dec. 2017. Available at: https://static1.squarespace.com/static/583f3fca725e25fcd45aa446/t/5a2fb013f9619a8167129eba/1513074709315/ICAR_DPLF+Extractive+NAPs+Guidance.pdf.
[2] Id. at 2
[3] Transparency International Kenya, Likelihood and Impact of Corruption in the Mining Sector High. Sept. 2017. Available at: https://tikenya.org/likelihood-and-impact-of-corruption-in-the-mining-sector-high/.
[4] Nicole Mordant, Canada to create overseas mining watchdog early in 2018, Reuters. Dec. 2017. Available at: https://www.reuters.com/article/us-canada-resources-ombudsman/canada-to-create-overseas-mining-watchdog-early-in-2018-idUSKBN1E700N.
