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Abstract
This article identifies and analyses a new type of process by which corporations are seeking to directly remedy serious violations of human rights associated with their operations. We call this process a ‘company-created human rights abuse remedy mechanism’ (CHRM). We argue that while this new type of process is often discussed as an operational-level grievance mechanism (OGM), it differs in key respects from OGMs as they have been generally conceived. Typically, OGMs are viewed as early-warning, prevention-oriented, and dialogue-based complaint and resolution processes for a wide range of (often low-level) adverse impacts. In contrast, the new process we describe here is designed to provide a largely fixed remedy for a known class of past serious human rights violations, is more adjudicative than dialogue-based, and seeks to impose final settlement on claims. Drawing on a case study of a CHRM created by a Canadian company at a goldmine in Papua New Guinea to provide remedies to victims of sexual assault committed by company guards, we argue that while CHRMs may promise more accessible and convenient remedies, they may also entail unique and serious risks to rights-holders and the right to remedy. Such mechanisms should be subjected to heightened scrutiny because of the risks to victims’ rights inherent in a mechanism designed by a company to remedy adverse impacts associated with its own operations, and should be used only sparingly and in accordance with stringent safeguards. Future project-level direct remediation efforts would benefit from a shift towards mechanisms created and administered as a partnership between a company and affected communities.
Acknowledgements
This article was written in the course of a multi-year investigation of the Porgera Joint Venture Gold Mine, an investigation jointly undertaken by the Global Justice Clinic at New York University School of Law, the International Human Rights Clinic at Harvard Law School, and the Human Rights Clinic at Columbia Law School. The results of those investigations will be published in 2015 by the clinics. Parts of this article were researched and written while the authors worked at New York University School of Law.
We wish to acknowledge the many residents of Porgera, Papua New Guinea, who, at great risk to themselves, have been advocating for human rights and seeking justice for abuses they and their communities have experienced. We particularly thank those who shared with us their experiences of violence and their views about just remedies. We also thank law students in the human rights clinics at Harvard Law School, New York University School of Law, and Columbia Law School for their research and commitment over the years, as well as Philip Alston and Joanne Bauer for their comments on drafts of this article, and Tyler Giannini and Amelia Evans for their invaluable contributions to the research project that informed this article.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Sarah Knuckey is Associate Clinical Professor of Law; Director, Human Rights Clinic; Faculty Co-Director, Human Rights Institute, Columbia Law School.
Eleanor Jenkin is a Consultant to the UN Office of the High Commissioner for Human Rights, and is the former Senior Advisor to the Initiative on Human Rights Fact-Finding, Center for Human Rights and Global Justice, and Arthur Helton Global Human Rights Fellow, New York University School of Law.
Notes
1. See for example, Gwynne Skinner, Robert McCorquodale, Olivier De Schutter, and Andie Lambe, The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business, International Corporate Accountability Roundtable, CORE, the European Coalition for Corporate Justice (December 2013) (analysing ten key obstacles); Nadia Bernaz, ‘Enhancing Corporate Accountability for Human Rights Violations: Is Extraterritoriality the Magic Potion?’, Journal of Business Ethics 117 (2013): 493–511; Richard Meeran, ‘Access to Remedy: The United Kingdom Experience of MNC Tort Litigation for Human Rights Violations', in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, ed. Surya Deva and David Bilchitz (Cambridge: Cambridge University Press, 2013), 378 (describing corporate legal accountability as ‘generally regarded an almost impenetrable challenge', but providing analysis of some successful efforts in English courts); Tineke Lambooy, Aikaterini Argyrou, and Mary Varner, ‘An Analysis and Practical Application of the Guiding Principles on Providing Remedies with Special Reference to Case Studies Related to Oil Companies', in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? ed. Surya Deva and David Bilchitz (Cambridge: Cambridge University Press, 2013), 329–78; Gonzalo Aguilar Cavallo, ‘Pascua Lama, Human Rights, and Indigenous Peoples: A Chilean Case Through the Lens of International Law’, Goettingen Journal of International Law 5, no. 1 (2013): 215–49; Justine Nolan and Luke Taylor, ‘Corporate Responsibility for Economic, Social and Cultural Rights: Rights in Search of a Remedy?’, Journal of Business Ethics 87 (2009): 433–51; Chilenye Nwapi, ‘Jurisdiction by Necessity and the Regulation of the Transnational Corporate Actor’, Utrecht Journal of International and European Law 30, no. 78 (2014): 25–31 (describing legal and political obstacles to accountability); Beth Stephens, ‘The Amorality of Profit: Transnational Corporations and Human Rights', Berkeley Journal of International Law 20 (2002): 45–91; Jérémie Gilbert, ‘Corporate Accountability and Indigenous Peoples: Prospects and Limitations of the US Alien Tort Claims Act’, International Journal on Minority and Group Rights 19, no. 1 (2012): 25–52 (describing the accountability gap faced by indigenous populations when their lands are impacted by large scale extractives projects); Wolfgang Kaleck and Miriam Saage-Maaβ, ‘Corporate Accountability for Human Rights Violations Amounting to International Crimes’, Journal of International Criminal Justice 8 (2010): 699–724 (analysis of enforcement mechanism inadequacy). Numerous guides which provide practical advice for navigating these difficulties also exist. See for example, Accountability Counsel, Accountability Resource Guide, Version 7.1 (San Francisco: Accountability Counsel, 2012); The International Federation for Human Rights, Corporate Accountability for Human Rights Abuses: A Guide for Victims and NGOs on Recourse Mechanisms (updated March 2012).
2. Other common non-judicial grievance mechanisms include national government-created mechanisms such as national human rights institutions, and multi-stakeholder initiative complaint mechanisms. See, Office of the High Commissioner for Human Rights, ‘Taking Stock: 1 ½ Years After the Endorsement of the GP's Pillar III: Access to Non-Judicial Remedy' (Background Note on the Parallel Session, Forum on Business and Human Rights, 4–5 December 2012). For critiques of multi-stakeholder non-judicial remedy mechanisms in practice, see, Luc W. Fransen and Ans Kolk, ‘Standards Global Rule-Setting for Business: A Critical Analysis of Multi-Stakeholder Standards’, Organization 14 (2007): 667; John Morrison and Luke Wilde, The Effectiveness of Multi-Stakeholder Initiatives in the Oil and Gas Sector: Summary Report (TwentyFifty Ltd, March 2007); Marina Ottaway, ‘Corporatism Goes Global: International Organizations, Nongovernmental Organization Networks, and Transnational Business’, Global Governance 7 (2001): 265–92. On the effectiveness of the OECD Guidelines for Multinational Enterprises, see OECD Watch, Calling for Corporate Accountability: A Guide to the 2011 OECD Guidelines for Multinational Enterprises (June 2013); Jernej Letnar Černič, ‘Corporate Responsibility for Human Rights: A Critical Analysis of the OECD Guidelines for Multinational Enterprises', Hanse Law Review 3, no. 1 (2008): 71–100.
3. Many OGMs include violations of human rights within their eligibility criteria, and so it is possible that isolated incidents of grave abuses have been dealt with through OGMs in the past. We are, however, aware of only two OGMs designed specifically to deal with large numbers of grave violations of human rights abuses in this fashion, and following the UN Guiding Principles. These include the mechanism discussed in this article, and a mechanism which has been instituted at African Barrick Gold's (a subsidiary of Barrick Gold Corporation) North Mara mine in Tanzania. See African Barrick Gold, Update on the North Mara Sexual Assault Allegations (20 December 2013), http://www.africanbarrickgold.com/~/media/Files/A/African-Barrick-Gold/Attachments/press-releases/2013/abg-update-north-mara-sexual-assault-allegations_20122013.pdf; African Barrick Gold, Letter to Ms Coumans and Ms Feeney Regarding African Barrick Gold's Non-Judicial Remedy Programs at North Mara, Tanzana (11 March 2014), http://www.africanbarrickgold.com/~/media/Files/A/African-Barrick-Gold/Attachments/pdf/abg-response-to-MWC-RAID-march-2014.pdf. We have not studied the North Mara mechanism, but concerns overlapping with those raised in this article have been raised by non-governmental organisations (NGOs). See, CORE, ‘Corporate Abuse Victims Sign Away Rights Under UK Company Complaint Process' (Press Release, 20 January 2014), http://corporate-responsibility.org/wp-content/uploads/2014/01/ABG-greivance-mech-PR_140127_final.pdf.
4. This article draws on information obtained by researchers from the Global Justice Clinic and Center for Human Rights and Global Justice (New York University School of Law), the International Human Rights Clinic (Harvard Law School), and the Human Rights Clinic (Columbia Law School) (including the authors) during numerous visits to Porgera between 2006 and 2015, as well as continual external monitoring of the situation in Porgera and regular communication with Porgerans and other stakeholders from 2006 to the present. The research team has conducted hundreds of interviews with local women and other stakeholders. In addition to information gleaned through interviews and field visits, this case study draws on publicly available documents relating to the mechanism, correspondence, communications with Barrick, participation in international grievance mechanism workshops, and secondary literature relating to grievance mechanisms, international law, and victim participation and community engagement. The investigations and methods are described in detail in a report of the clinics to be published in 2015.
5. Barrick Gold Corp., Olgeta Meri Igat Raits: A Framework of Remediation Initiatives in Response to Violence Against Women in the Porgera Valley (uploaded 16 May 2013), http://www.barrick.com/files/porgera/Framework-of-remediation-initiatives.pdf.
6. Barrick Gold Corp., The Porgera Joint Venture Remedy Framework (1 December 2014), 13, http://www.barrick.com/files/porgera/Porgera-Joint-Venture-Remedy-Framework-Dec1-2014.pdf. The value of individual components of the package is not clear from Barrick's public materials. EarthRights International (ERI), which represents some of the alleged victims, has published some of the agreements (although Barrick has stated that these agreements were drafts and not finalized). Those indicate that within the package, women receive a ‘business grant' of 15,000 kina (at that time, approximately US$5,620), with the rest of the package split between medical costs, counselling, business training, school fees, and a financial supplement. ERI assessed the value of the final package at 21,320 kina (or around US$8,176). See, ERI, ‘Survivors of Rape by Barrick Gold Security Guards Offered “Business Grants” and “training” in Exchange for Waiving Legal Rights’ (Press Release, 21 November 2014), http://www.earthrights.org/media/survivors-rape-barrick-gold-security-guards-offered-business-grants-and-training-exchange. We have also reviewed numerous signed agreements, which are near-identical to the agreements made public by ERI. In June 2015, as this article was being prepared for publication, Barrick informed the authors that each claimant would receive an additional sum of 30,000 kina. (Email from Peter Sinclair, Senior Vice President, Corporate Affairs, Barrick Gold Corporation, to Sarah Knuckey (24 June 2015)).
7. Barrick Gold Corp., The Porgera Joint Venture Remedy Framework, 12.
8. Indeed, Barrick itself seems to distinguish its mechanism from the plethora of complaints-based OGMs when, in describing its creation of the mechanism, it states, ‘Barrick is among the first companies to put into practice the Guiding Principle of the “right to remedy” since the ratification of the Principles by the UN Human Rights Council in 2011' (Barrick Gold Corp., ‘Barrick Corrects False Claims Concerning Remediation Program at Porgera’ (1 February 2013), http://www.barrick.com/files/porgera/Barrick-corrects-false-claims-concerning-Remediation-Program-at-Porgera.pdf).
9. A/HRC/17/31, ¶ 6.
10. Special Representative of the Secretary-General on the Issue of Human Rights and Transnational and other Business Enterprises, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy' Framework, Human Rights Council, UN Doc. A/HRC/17/31 (21 March 2011). See discussion in Robert McCorquodale, ‘Corporate Social Responsibility and International Human Rights Law’, Journal of Business Ethics 87 (2009): 385–400.
11. Guiding Principles, Principle 25. See also, Addressing Grievances from Project-Affected Communities (International Finance Corporation, Good Practice Note No. 7, 2009), 4 (describing operational-level grievance mechanism as, ‘a process for receiving, evaluating, and addressing project-level grievances from affected communities at the level of the company, or project'); Oxfam Australia, Community-Company Grievance Resolution: A Guide for the Australian Mining Industry (2010), 7 (describing company-level grievance mechanism as, ‘a company-supported, locally based and formalised method, pathway or process to prevent and resolve community concerns with, or grievances about, the performance or behavior of a company, its contractors or employees'); International Council on Mining and Metals, Handling and Resolving Local Level Concerns and Grievances (2009), 4 (defining ‘complaints mechanism’ as a ‘set of processes a company may have in place to deal with local level concerns and grievances').
12. Guiding Principles, Principle 22.
13. See, Shift, Remediation, Grievance Mechanisms and the Corporate Responsibility to Respect Human Rights, Workshop Report No. 5 (May 2014) (conceiving of OGMs within internal ecosystems and external landscapes of remedy processes).
14. Guiding Principles, Commentary, Principle 22; Guiding Principles, Principle 29.
15. Guiding Principles, Principle 31.
16. Ibid. The full criteria are: Legitimate (enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes); Accessible (being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access); Predictable (providing a clear and known procedure with an indicative time frame for each stage, and clarity on the types of process and outcome available and means of monitoring implementation); Equitable (seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms); Transparent (keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism's performance to build confidence in its effectiveness and meet any public interest at stake); Rights-compatible (ensuring that outcomes and remedies accord with internationally recognised human rights); A source of continuous learning (drawing on relevant measure to identify lessons for improving the mechanism and preventing future grievances and harms); and Based on engagement and dialogue (consulting the stakeholder groups for whose use they are intended on their design and performance, and focusing on dialogue as the means to address and resolve grievances).
17. Guiding Principles, Commentary, Principle 29.
18. See for examples, United Nations Office of the High Commissioner for Human Rights, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (2012), 58 (‘In sum, their primary purpose is to provide an early point of recourse to identify and address the concerns of directly affected stakeholders before they escalate or lead to otherwise preventable harm.'); Cristina Cedillo, Better Access to Remedy in Company-Community Conflicts in the field of CSR: A Model for Company-Based Grievance Mechanisms (The Hague Institute for Environmental Security, 2011), 4 (‘the objective of a company-based grievance mechanism is providing an early-stage recourse and possible resolution'); International Petroleum Industry Environmental Conservation Association (IPIECA), Operational Level Grievance Mechanisms: IPIECA Good Practice Survey (2012), 6 (highlighting ‘early identification and resolution' and ‘reduces the potential for complaints to escalate' as key effects of a good OGM).
19. See for example, Brian Husted, ‘Organizational Justice and the Management of Stakeholder Relations', Journal of Business Ethics 17, no. 6 (1998): 643–51; Brian Bemmels and Janice R. Foley, ‘Grievance Procedure Research: A Review and Theoretical Recommendations’, Journal of Management 22, no. 3 (1996): 359–84.
20. See for example, CSR Europe, Assessing the Effectiveness of Company Level Grievance Mechanisms (2013), 4 (explaining that 87% of CSR's members already have an operational-level grievance mechanism in place, and 40% have begun addressing community grievances in a systematic way); Damiano de Felice, ‘Measuring the Effectiveness of Grievance Mechanisms: Between Key Performance Indicators and Engagement with Affected Stakeholders’, Measuring B&HR (blog) (London School of Economics, 11 April 2014), http://blogs.lse.ac.uk/businesshumanrights/2014/04/11/damiano-de-felice-measuring-the-effectiveness-of-grievance-mechanisms-between-key-performance-indicators-and-engagement-with-affected-stakeholders/ (discussing challenges in measuring the effectiveness of OGMs).
21. See for example, SOMO, ‘Human Rights and Grievance Mechanisms: Summary of Four-Year SOMO Programme Funded by the Dutch Ministry of Foreign Affairs, Human Rights Fund 2012–2015’ (November 2012); Corporate Accountability Research, ‘Non-Judicial Redress Mechanisms Project’, http://corporateaccountabilityresearch.net/project-1/; Shift, Remediation, Grievance Mechanisms and the Corporate Responsibility to Respect Human Rights; ACCESS Facility hosted an Expert Meeting on 3–4 April 2014 on the topic ‘Sharing experiences and finding practical solutions regarding the implementation of the UNGP's effectiveness criteria in grievance mechanisms.' Sarah Knuckey attended the meeting. For more information, see http://accessfacility.org/3-4-april-expert-meeting-sharing-experiences-and-finding-practical-solutions-regarding.
22. See also, International Finance Corporation, Addressing Grievances from Project-Affected Communities: Guidance for Projects and Companies on Designing Grievance Mechanisms (2009); Caroline Rees, Rights-Compatible Grievance Mechanisms – A Guidance Tool for Companies and their Stakeholders (Corporate Social Responsibility Initiative, Harvard Kennedy School, 2008); Deanna Kemp and Nora Gotzmann, Community Grievance Mechanisms and Australian Mining Companies Offshore: An Industry Discussion Paper (Centre for Social Responsibility in Mining, the University of Queensland, 2008); Office of the Compliance/Advisor Ombudsman for the International Finance Corporation and Multilateral Investment Guarantee Agency, A Guide to Designing and Implementing Grievance Mechanisms for Development Projects (2008); Caroline Rees, Grievance Mechanisms for Business and Human Rights: Strengths, Weaknesses and Gaps, Working Paper No. 40 (Corporate Social Responsibility Initiative, Harvard Kennedy School, 2008); Deanna Kemp and Carol Bond, Mining Industry Perspectives on Handling Community Grievances – Summary and Analysis of Industry Interviews (Centre for Social Responsibility in Mining, the University of Queensland and Corporate Social Responsibility Initiative, Centre for Social Responsibility in Mining, the University of Queensland, and Corporate Social Responsibility Initiative, Harvard Kennedy School, 2009).
23. Many of these studies have employed a similar methodology, relying on the cooperation of the company deploying the mechanism and with limited engagement with local stakeholders and end-users. In fact, a recent publication by the Institute for International Development (IIED) identified a lack of material on the community perspectives on company-led grievance mechanisms as a gap in existing literature (see, Emma Wilson and Emma Blackmore, eds, Dispute or Dialogue?: Community Perspectives on Company-Led Grievance Mechanisms (London: International Institute for Environment and Development, 2013), 11.
24. See for example, Caroline Rees, Piloting Principles for Effective Company-Stakeholder Grievance Mechanisms: A Report of Lessons Learned; Barbara Linder et al., The Right to Remedy: Extrajudicial Complaints Mechanisms for Resolving Conflict of Interest between Business Actors and those Affected by their Operations (Vienna: Ludwig Boltzmann Institute, 2013); Wilson and Blackmore, Dispute or Dialogue?; Oxfam Australia, Community-Company Grievance Resolution.
25. See for example, Caroline Rees and David Vermijs, Mapping Grievance Mechanisms in the Business and Human Rights Arena (describing the case study of Xstrata Copper in Peru and its use of arbitration); Oxfam Australia, Community-Company Grievance Resolution (describing the ‘Mesa de Dialogo’ or ‘Dialogue Table’ mediations conducted by Oxfam Australia's Mining Ombudsman at Xstrata's Tintaya copper mine in Peru).
26. See for example, Office of the High Commission for Human Rights, Re: Allegations Regarding the Porgera Joint Venture Remedy Framework (2013) (‘The Porgera remediation framework is an operational level grievance mechanism that was set up as a direct response to well-founded allegations of sexual violence against women residing in the Porgera Valley, perpetrated by men who were employed at the Porgera mine.'); Access Facility, ‘General information on Barrick Gold Corporation's Operational Level Grievance Mechanisms’, http://accessfacility.org/general-information-barrick-gold-corporations-operational-level-grievance-mechanisms (referring to the Olgeta Meri Igat Raits Framework as an ‘operational level grievance mechanism’); Catherine Coumans, Brief on Concerns Related to Project-Level Non-Judicial Grievance Mechanisms (MiningWatch Canada, April 2014), http://www.miningwatch.ca/sites/www.miningwatch.ca/files/brief_on_njgms_access_meeting_april_2014_final.pdf (describing the mechanism as a ‘project-level grievance mechanism put in place by Barrick Gold for victims of rape by the mine's security guards’).
27. See for example, Akali Tange Association, The Shooting Fields of Porgera Joint Venture (2005) (on file with authors); MiningWatch Canada, ‘Papua New Guinea Conducts Flawed Investigation of Killings at Barrick Mine’ (Press Release, 10 July 2006), http://www.miningwatch.ca/papua-new-guinea-conducts-flawed-investigation-killings-barrick-mine; International Human Rights Clinic, Harvard Law School and Center for Human Rights and Global Justice, New York University School of Law, Legal Brief before the Standing Committee on the Foreign Affairs and International Development House of Commons Regarding Bill C-300 (2009), http://www.business-humanrights.org/Documents/CanadaParliamentarytestimonyreBarrickPJV; Human Rights Watch, Gold's Costly Dividend: Human Rights Impacts of Papua New Guinea's Porgera Gold Mine (New York: Human Rights Watch, 2010).
28. See for example, Barrick Gold Corp., Olgeta Meri Igat Raits: A Framework of Remediation Initiatives, 8; Barrick Gold Corp., The Porgera Joint Venture Remedy Framework, 9–11.
29. For example, the grievance process established by Xstrata Copper, Peru, in which the final dispute resolution phase involves the appointment of an Arbitration Court, comprising one arbitrator each appointed by the company and the community, and typically an ombudsman. See, Rees and Vermijs, Mapping Grievance Mechanisms in the Business and Human Rights Arena, 19–21.
30. Barrick was responsible for the design of the mechanism. Independent agents, namely the PRF Association (an association incorporated to oversee implementation of the mechanism) and Cardno Emerging Markets (Australia) Pty Ltd (a company retained to administer the individual reparation programme on the ground), were engaged to implement the mechanism after it had been finalised.
31. See, Barrick Gold Corp., Olgeta Meri Igat Raits: A Framework of Remediation Initiatives, 10–11. See also, Letter from Peter Sinclair, Vice President Corporate Soil Responsibility, Barrick Gold Corp., to Dr Navanethem Pillay, UN High Commissioner for Human Rights (22 March 2013), http://www.barrick.com/files/porgera/Letter-to-UN-High-Commissioner.pdf; Barrick Gold Corp., ‘Barrick Corrects Further False Claims Concerning Remediation Program at Porgera’ (Press Release, 16 April 2013), http://www.barrick.com/files/porgera/Barrick-corrects-further-false-claims-concerning-Remediation-Program-at-Porgera.pdf.
32. Despite this, the quality and depth of consultation with other stakeholders was also, in some cases, shallow. This was the experience of CHRGJ/HRP. We were invited to provide comments on the draft remedy proposal only very late in the process, and few of our comments and suggestions were taken up.
33. Many now feel resentful at not having been consulted. For example, one woman remarked, ‘No one ever spoke to us … They should have come and talked to us here instead of just starting this framework’ (Interview 2-2014).
34. One victim remarked, ‘Barrick has never done anything like this before. I don't trust it’ (Interview 3-2013).
35. The only local organisations purportedly consulted were the Porgera District Women's Association (PDWA) and Porgera Environmental Advisory Komiti (PEAK). Both organisations receive funding and other support from Barrick; the PDWA has its offices inside Barrick's fences (see, Barrick Gold Corporation, 2011 Responsibility Report (2012), 44, http://www.barrick.com/files/responsibility-report/2011/Barrick-2011-Responsibility-Report.pdf; PEAK Association Inc., Funding Forecast for 2013, http://www.peakpng.org/resources/Budget_2013.pdf). Neither organisation, to our knowledge, had done any work on the assault issue previously, and it has been our experience that the local community has limited knowledge of the work of the organisations.
36. These groups were the Akali Tange Association (ATA) and the Porgera Landowners Association (PLOA). These groups sometimes work together as the Porgera Alliance. The ATA was founded with the purpose of seeking compensation for victims of human rights violations occurring at the Porgera mine; the PLOA represents traditional landowners. The groups have for a number of years brought allegations to the attention of the company, and the Porgera Alliance is a party to a complaint against Barrick before the OECD National Contact Point in Canada regarding the mine-related abuses (see, Porgera Alliance, ‘Background – Issues Related to Barrick Gold's Porgera Joint Venture Mine in Papua New Guinea' (May 2011), http://www.porgeraalliance.net/2011/05/background-issues-related-to-barrick-gold%E2%80%99s-porgera-joint-venture-mine-in-papua-new-guinea-may-2011/). MiningWatch Canada, an NGO which has been actively engaged since 2005 on human rights issues surrounding Porgera and critical of Barrick, also appears to have been excluded from mechanism design consultations.
37. Letter from Peter Sinclair, Vice President Corporate Soil Responsibility, Barrick Gold Corp., to Dr Navanethem Pillay, UN High Commissioner for Human Rights' (22 March 2013), 5–6.
38. Indeed, ‘ignoring or refusing to engage least trusted groups’ is recognised as a key barrier to responsible grievance handling (Kemp and Bond, Mining Industry Perspectives on Handling Community Grievances, 38). See also, Ellie Brodie et al., Understanding Participation: A Literature Review (Pathways Through Participation, 2009), 29.
39. Many of the potential claimants we spoke with in 2013 stated that they would not access the mechanism until advised to do so by elders and leaders.
40. Guiding Principles, Principle 29(h).
41. United Nations, Guidance Note of the Secretary-General: Reparations for Conflict‐Related Sexual Violence (2014), 15.
42. One woman stated, ‘They did not ask me what I wanted. They just told me what they were going to do’ (Interview 14-2013).
43. According to information provided to us, when claimants requested amounts of compensation greater than 20,000 kina, their claims were rejected by Claims Assessment Team members as being outside the mechanism (Interview 26-2014; Interview 63-2014).
44. A number of female alleged victims of non-sexual violence attempted to make claims with the mechanism when it opened, but were turned away. Barrick has issued many public statements about its responses to allegations of sexual assault, but it has remained largely silent on issues of non-sexual violence, and the company's written materials do not explain its decision to exclude claims of non-sexual violence. In its initial response to the allegations of sexual violence made by Human Rights Watch in their report Gold's Costly Dividend, Barrick did not acknowledge the allegations of non-sexual violence, including excessive use of force (see, Barrick Gold Corp., ‘Addressing Violence Against Women at Porgera’ (Press Release, 27 October 2011), http://www.barrick.com/files/porgera/Progress-on-Human-Rights-at-Porgera.pdf), nor are we able to find evidence of Barrick addressing the issue in any subsequent statements or documents posted on its website (see, Barrick Gold Corp., ‘“Porgera 95%”: Human Rights Remedy', http://www.barrick.com/operations/papua-new-guinea/porgera/default.aspx). The mechanism documents also do not acknowledge allegations of non-sexual human rights violations, or specifically explain why it is limited to cases of sexual assault (see, Barrick Gold Corp., Olgeta Meri Igat Raits: A Framework of Remediation Initiatives).
45. International Human Rights Clinic, Harvard Law School and Center for Human Rights and Global Justice, New York University School of Law, Legal Brief before the Standing Committee on the Foreign Affairs and International Development House of Commons Regarding Bill C-300, 22. In visits to Porgera carried out since the preparation of the legal brief, we have spoken with additional individuals who have alleged excessive force by Barrick security personnel, allegations not previously recorded by our research teams.
46. It would be surprising if security guards – who committed extraordinarily violent gang rapes, rapes that were often coterminous with extensive non-sexual beatings – were otherwise fully compliant with human rights law's restrictions on the use of force in their encounters with community members.
47. The Claims Assessment Team did not have a permanent presence in Porgera, but instead visited in a number of rotations of generally two weeks each. The initial period for lodging claims was in fact extended, at the behest of ERI, for a number of women represented by the NGO.
48. For a discussion of the relationship between the PDWA and Barrick, see note 35.
49. The mechanism implementers had legitimate concerns (which the authors share) about creating a broad, media-driven, and very public awareness campaign for the mechanism. Although the guides for remedy mechanisms emphasise improving accessibility through wide awareness-raising, in Porgera, an important concern was that if the entire Porgeran community (that is, including men) knew about the mechanism and where its complaints office was located, this could have – given the pervasive shaming and harm to sexual assault victims in the area – endangered women or prevented them from making claims due to fear.
50. Our interviews over the last two years indicate that numerous alleged victims did not know about the mechanism, or were not correctly informed about it and therefore did not access it. During a recent visit to the region, in December 2014–January 2015, additional women not previously known to us, came forward to report assaults. We make no assessment as to the legitimacy of their allegations, but like other alleged victims, they should at minimum be able to present their complaints to the mechanism.
51. Guiding Principles, Principle 31(f).
52. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, G.A. Res. 60/147, UN Doc. A/RES/60/147 (16 December 2005) Annex, Art. 15. Barrick states that the framework was developed using the Basic Principles: see, Barrick Gold Corp., Olgeta Meri Igat Raits: A Framework of Remediation Initiatives, 10.
53. Velásquez-Rodríguez Case, Interpretation of Compensatory Damages (Art. 67 American Convention on Human Rights), Judgment, Inter-Am. Ct. H.R. (Ser. C) No. 9 ¶ 4 (17 August 1990); Dinah Shelton, Remedies in International Human Rights Law (Oxford: Oxford University Press, 2005), 345.
54. Barrick cited concerns for the safety of claimants as the reason for structuring compensation in this fashion, as well as the fear that cash payments would be disbursed to husbands and the clan, noting that ‘any award of cash to the Claimant must be carefully considered and discussed with the Claimant to minimise any risk that this would present to the Claimant’, in Barrick Gold Corp., Claims Process Procedures Manual (undated), 6, http://www.barrick.com/files/porgera/Claims-Process-Procedures-Manual.pdf. Also, Barrick Gold Corp., Olgeta Meri Igat Raits: A Framework of Remediation Initiatives, 12.
55. Women interpreted the initial offers as offers of goods. Following numerous visits over two years, we think it is possible that they were initially offered some form of small business grant (for example, for a chicken raising or clothes selling business), but that this was conveyed in a way that led to widespread (mis)understanding that goods were being offered. In any event, it is not clear what the difference between the two offers would be in practice.
56. One woman explained, ‘These materials, sewing and things … are not enough. With what happened to me … From our customs, we don't pay compensation with these things. We pay with cash and other things’ (Interview 14-2013). Village Courts are known to award cash compensation in cases of sexual assault.
57. See ERI, Factsheet: Abuse by Barrick Gold Corporation (December 2014), http://www.earthrights.org/legal/factsheet-abuse-barrick-gold-corporation. During interviews in Porgera, some told us women were provided three years of school fees. Direct communications from Barrick to us state three years, however Barrick's public materials state two years: see, Barrick Gold Corp., The Porgera Joint Venture Remedy Framework, 14.
58. Barrick stated that these supplements “follow[ed] recent discussions with eligible claimants”. (Email from Peter Sinclair, Senior Vice President, Corporate Affairs, Barrick Gold Corporation, to Sarah Knuckey (24 June 2015)).
59. Risks of cash payments include that cash might be appropriated or forcibly taken by family members instead of being used to the benefit of the woman, and women might be coerced into making false claims to the mechanism in order to secure a cash benefit.
60. These views were expressed about the earlier finalized packages. In July 2015, many women interviewed in Porgera were even more disappointed with the remedy mechanism packages. They did not consider the 30,000 kina supplement to be fair or just, in light of their understanding of the much greater amounts awarded to ERI clients.
61. Interview 44-2014. A small number of women who obtained access to legal representation from a United States (US)-based NGO, ERI, opted to reject the packages. As this article was being finalised for publication, Barrick and ERI announced that those cases had been resolved through a negotiated settlement. See, ERI, ‘Survivors Who Alleged Rape and Killing at Papua New Guinea Mine Pleased With Barrick Gold Settlement' (Press Release, 3 April, 2015), http://www.earthrights.org/media/survivors-who-alleged-rape-and-killing-papua-new-guinea-mine-pleased-barrick-gold-settlement.
62. Barrick Gold Corp., Olgeta Meri Igat Raits: A Framework of Remediation Initiatives in Response to Violence Against Women in the Porgera Valley, 12. The packages would be “determined based on reference to” (among other factors, such as the type of harm) Barrick's research on the “upper levels of compensation” awarded by PNG courts for sexual assault (as opposed to traditional courts, which may award different remedies, and which many in Porgera have the most familiarity). ‘A Summary of Recent Changes to the Porgera Remediation Framework’ (Press Release, 7 June 2013), http://www.barrick.com/files/porgera/Summary-of-Recent-Changes-to-the-Porgera-Remediation-Framework.pdf, the document is the ‘Summary of Recent Changes’ document.
63. Email from Peter Sinclair, Senior Vice President, Corporate Affairs, Barrick Gold Corporation, to Sarah Knuckey (24 June 2015). This is not the impression given by the mechanism's public documents, and it is not clear to the authors whether this was always the case, or is a recent change. The amounts initially awarded by the third-party implementer appear to track the amounts awarded in the PNG justice system.
64. Z v. UK [2001] 2 FLR 612, ¶ 131, in which the court, in applying the principle that ‘the rates applied in domestic cases, though relevant, are not decisive', in fact determined that equity required a departure from the levels of awards in similar cases in domestic courts (applying UK law: Smith and Grady v. the United Kingdom (just satisfaction), nos 33985/96 and 33986/96, §§ 18-19, ECHR 2000-IX).
65. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, Annex, Art. 15.
66. Velasquez Rodriguez Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgment of 21 July 1989, Inter-Am. Ct.H.R. (Ser. C) No. 7, ¶ 30 (1990).
67. See for example, Rashida Manjoo, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Rashida Manjoo. Mission to Papua New Guinea, A/HRC/23/49/Add.2 (18 March 2013); AusAID, Papua New Guindea Country Report (2009), at 35 (‘the response of the Papua New Guinea justice sector to violence against women has been relatively weak').
68. Awards made in these countries vary greatly, depending on jurisdiction, the facts of the case, and whether punitive or exemplary damages are available. Nonetheless, Elizabeth Grace has identified a trend towards high non-pecuniary awards for sexual assault in Canada. She cites several cases where non-pecuniary awards were CA$250,000 or greater, as well as the case of Evans v. Sproule [2008] O.J. No. 4518 (ONSC), in which the victim of a sexual assault by a police officer which did not include genital contact received $150,000 in non-pecuniary damages (Elizabeth Grace, ‘Trend Develops for Higher Sexual Abuse Non-Pecuniary Awards’, Lawyers Weekly (February 2010), http://lernerspersonalinjury.ca/lawyers/elizabeth-grace/#selected-publications-presentations). Damages can be even higher. In a groundbreaking 2013 case, a jury in Ontario found a school board directly and vicariously liable for the sexual assault of a student by its employee, awarding the victims damages of CA$3.2 million (Langstaff v. Robert Terry Marson and The Hasting and Prince Edward District School Board, 2013 CarswellOnt 3819, 2013 ONSC 1448 (S.C.J.)).
69. The waiver clause reads, ‘The claimant agrees that, in consideration for the Reparations, on and from the date of signing this Agreement, she will not pursue any claim for compensation, or any civil legal action, that relates in any way to the Conduct [the claimant was the subject of sexual violence attributable to one or more current or former employees of the Porgera Joint Venture], against the Porgera Joint Venture, PRFA or Barrick in Papua New Guinea or in any other jurisdiction. This expressly excludes any criminal action that may be brought by any state, governmental or international entity' (Barrick Gold Corp., Claims Process Procedures Manual, Form 9: Individual Reparations Agreement, 45).
70. Guiding Principles, Principle 29.
71. See, Letter from Catherine Coumans, Asia Pacific Program Director, MiningWatch Canada, to Dr Navanethem Pillay, UN High Commissioner for Human Rights (19 March 2013), http://www.miningwatch.ca/sites/www.miningwatch.ca/files/letter_to_unhchr_on_porgera_2013-03-19.pdf; Letter from Catherine Coumans, Asia Pacific Program Director, MiningWatch Canada, to Dr Navanethem Pillay, UN High Commissioner for Human Rights (2 April 2013), http://www.miningwatch.ca/sites/www.miningwatch.ca/files/letter_to_un_high_commissioner_april_2_2013.pdf; Letter from various concerned organisations, to Dr Navanethem Pillay, UN High Commissioner for Human Rights (14 May 2013), http://www.miningwatch.ca/sites/www.miningwatch.ca/files/ltr_to_unhchr_may_14_2013_re_porgera_sign-on.pdf.
72. Barrick Gold Corp., Olgeta Meri Igat Raits: A Framework of Remediation Initiatives, 28. Barrick's mechanism is distinct from PNG criminal processes. Following internal investigations before the mechanism was created, Barrick stated that it terminated the employment of a number of its employees suspected of abuse, although the numbers of those terminated and for what specific offences has not been made public. Barrick has also stated that it encouraged police to investigate, and provided evidence to police. See, Barrick Gold Corp., The Porgera Joint Venture Remedy Framework, 4. To our knowledge, and based on interviews with local police and prosecutors, no Barrick security guards have been convicted of sexual assault, and no criminal investigations have been launched into whether Barrick itself or Barrick managers bear any criminal responsibility for the actions of security guards.
73. Office of the High Commission for Human Rights, Re: Allegations Regarding the Porgera Joint Venture Remedy Framework.
74. Ibid., 8–9.
75. Ibid.
76. The OHCHR opinion does allude, in footnote 25, to another concern of Barrick's, which is the potential for double recovery. The OHCHR Rule of Law Tools for Post-Conflict States: Reparations Programmes (2008) suggests this problem is ‘easily addressed’, and describes the Peruvian Truth and Reconciliation Commission's position, in which victims who received compensation through the commission, then received a civil award through judicial procedures, were required to return to the state the compensation they had received through the reparations programme (35). While other parts of the OHCHR Rule of Law Tools for Post-Conflict States: Reparations Programmes are referred to this approach for preventing double recovery while preserving access to courts is not mentioned in the OHCHR opinion.
77. Owen M. Fiss, ‘Against Settlement’, Yale Law Journal 93, no. 6 (1984): 1073–90.
78. Barrick provided funding for an Independent Legal Advisor (ILA) to meet with each claimant, and to advise the claimant on: (a) the merits of her claim; (b) the process for pursuing a claim through the mechanism; (c) the availability of translators during her participation in the mechanism; (d) the remedies that may be available to the claimant if her claim is found to be eligible and legitimate; (e) the legal consequences of accepting any offer made by Barrick and signing an agreement releasing the company from civil claims; (f) the legal options available to the claimant; and (g) her possible exposure under PNG law should any false claim be made during her participation in the mechanism process (see, Barrick Gold Corp., Claims Process Procedures Manual, Form 10: Signed Statement of Independent Legal Advisor, 48). Our interviews on the ground suggest that the ILA was a committed and thoughtful advisor. However, our interviews also indicate that her perceived independence was undermined (numerous women incorrectly believed that the ILA was Barrick's, rather than their, lawyer), and that many women had a poor understanding of their legal options, and were not advised of potential foreign legal claims or alternative direct mediation options.
79. Guiding Principles, Principle 31(e). For a detailed analysis of the role of transparency in the Guiding Principles, and of the broad, critical role of access to information and corporate transparency in the effective operationalisation of the Guiding Principles, see Nicola Jägers, ‘Will Transnational Private Regulation Close the Governance Gap?’, in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? ed. Surya Deva and David Bilchitz (Cambridge: Cambridge University Press, 2013), 295–328.
80. Guiding Principles, Principle 31(g).
81. Rees, Rights-Compatible Grievance Mechanisms, 23–24.
82. Guiding Principles, Commentary on Principle 31.
83. See for example, Barrick Gold Corp., ‘A Summary of Recent Changes to the Porgera Remediation Framework’; Barrick Gold Corp., The Porgera Joint Venture Remedy Framework.
84. Barrick has cited the need to protect the confidentiality of victims as the reason for not releasing information. The need to protect the confidentiality of victims is undoubtedly a vital consideration. However, as recognised in the Guiding Principles, the need for transparency and the need to protect confidentiality must be balanced. No personal information about victims should ever be released, at least absent properly informed consent and assessment of security risks, but a great deal of anonymised and aggregated information regarding issues such as numbers and types of cases, process and time for handling of cases, and the progress and disposition of cases, can be released without exposing claimants to risk.
85. Barrick committed in November 2013 to making the outcome of the review public (see, Barrick Gold Corp., ‘Continued Progress of Claims under the Porgera Remediation Framework’ (1 November 2013), http://www.barrick.com/files/porgera/Continued-progress-of-claims-under-the-Porgera-Remediation-Framework.pdf). This has not happened, other than the inclusion of a brief excerpt as an appendix in Barrick's December 2014 document, The Porgera Joint Venture Remedy Framework. Barrick has also undertaken to conduct a review now that the mechanism is coming to a close.
86. For example, Barrick announced improvements to translation services for victims, extended the timeframe for lodging of claims, amended the scope of advice provided by the ILA, and seemed to have changed the form of compensation packages (see, Letter from Peter Sinclair, Vice President Corporate Soil Responsibility, Barrick Gold Corp., to Dr Navanethem Pillay, UN High Commissioner for Human Rights (22 March 2013)); Barrick Gold Corp., ‘A Summary of Recent Changes to the Porgera Remediation Framework'. Another positive change included the provision of feedback from victims to the third-party implementer, although our research could not determine the scope or nature of this feedback, or how many women provided it: Barrick Gold Corp., The Porgera Joint Venture Remedy Framework, 3.
87. Heidy Rombouts et al., ‘The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights’, in Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations, ed. K. De Feyter et al. (Antwerp: Intersentia, 2005), 492.
88. Rees, Rights Compatible-Grievance Mechanisms, 30.
89. Independent third parties could include but are not limited to NGOs (such as Oxfam Australia's now defunct Mining Ombudsman). It would be necessary for victims and key stakeholders to endorse any independent third party exercising oversight.
90. See for example, African Development Bank, Handbook on Stakeholder Consultation and Participation in ADB Operations (2001), 2 (engagement with primary stakeholders, including those who are the intended beneficiaries of the intervention, demands a higher level of engagement).
91. While at all times protecting the confidentiality of victims and ensuring their safety.