What direction for human rights impact assessments?

Abstract

This article contributes to the development of a standard of good practice for Human Rights Impact Assessment (HRIA). It charts the design, delivery and refinement of a methodology for identifying and assessing the human rights impacts of an existing mining operation. The methodology was designed to fulfil the requirements of an internal corporate standard, as well as the due diligence requirements of the United Nations Guiding Principles for Business and Human Rights. The HRIA model emphasizes the identification of human rights impacts and the assessment of the effectiveness of responses to such impacts. Four elements are central: (1) building a shared understanding of the historical and current human rights context of the operation; (2) identifying the current and potential areas of human rights impacts and prioritizing them; (3) reviewing the management systems in place to address human rights impacts; and (4) facilitating significant human rights capacity building for operational personnel responsible for managing human rights-related areas. We also consider the question: where is the most natural home for this emerging field of practice? The fields of social impact assessment, corporate accountability and risk assessment are considered. The authors conclude with key questions that require answers before the full potential of HRIA's role in the business and human rights agenda can be realized.

Keywords:

• Human rights
• business
• impact assessment
• mining
• due diligence

Introduction

The growing corporate responsibility to respect human rights has become a firmly established voluntary requirement for mining and other companies. Reasons for this development are broad and include: increased community expectations of corporates; the effective articulation of these expectations through global non-governmental organization (NGO) campaigning; significant normative work from the United Nations; elevated interest from investors; and other responses from academia, governments and relevant industry bodies, which in the case of mining include the International Council on Mining and Metals (ICMM). Practically, this development has resulted in companies seeking to better understand and better manage their human rights risks and actual impacts.

Over the last two years, the authors of this article, both of whom who are consultants offering specialized social sustainability services, have experienced a growing demand from the mining sector for services and methodologies that can help companies assess their human rights impacts. Much of this momentum is as a direct response to meeting the due diligence requirements of the United Nations (UN) Guiding Principles on Business and Human Rights (UN Guiding Principles) and its precursor, the UN ‘Protect, Respect, Remedy’ Framework (UN Framework) (Ruggie 2008; 2011).

Because the assessment of human rights impacts is an emerging field of practice, determining the most appropriate solutions for conducting this new type of assessment can be challenging. Despite the wide range of relevant guidance now emerging, the development of normative approaches and standardization will take time. Interdisciplinary knowledge sharing, in terms of both theory and practice, will be critical to the successful development of a widely accepted good practice standard for assessing a company's human rights impacts.

This article contributes to the development of such a standard by presenting a review of the early yet substantial body of practical experience in ‘Human Rights Impact Assessment’ (HRIA) developed through the delivery of five human rights assessment projects for a mining industry client. The article charts the design, delivery and refinement of a methodology for identifying and assessing the human rights impacts of an existing mining operation. The methodology was originally designed to fulfil the internal requirements of a particular mining client's corporate standard, as well as a consideration of the due diligence requirements of the UN Framework and UN Guiding Principles (Ruggie 2008, 2011). In developing the methodology, the intent was to construct a process that would be robust in responding directly to three of the four human rights due diligence requirements, yet adaptable enough to be applied within a range of contexts.

Reflecting on our experience, there are four elements that became central to this methodology as we developed it across the five HRIA projects, and subsequently to similar projects with other mining companies: (1) building a shared understanding at the outset of the historical and current human rights context of the operation; (2) identifying the current and potential areas of human rights impacts and prioritizing these, based on primary and secondary data analysis, to enable targeted assessment; (3) reviewing the management systems in place to address human rights impacts in order to assess the effectiveness of the responses to the identified human rights impacts; and (4) incorporating significant human rights capacity building for operational personnel responsible for managing human rights-related areas.

The body of practical experience is also considered in relation to broader implications for the future direction of HRIAs. A key directional choice is whether HRIAs should be a standalone activity, or whether social impact assessments (SIAs) should incorporate human rights. Perhaps the most significant question is which discipline is the natural home for this emerging field of practice? The field of SIA is an obvious contender, but the fields of corporate accountability and risk assessment offer other possibilities. The article concludes by posing questions that the authors believe need to be considered in order to realize the full potential of the business and human rights agenda.

HRIA: An emerging field of practice

In early 2011, the UN released the UN Guiding Principles on Business and Human Rights (Ruggie 2011), the result of a six-year research and consultation process led by the UN Secretary-General's Special Representative on Business and Human Rights, Professor John Ruggie. Coupled with its precursor, the UN Framework (Ruggie 2008), the UN Guiding Principles articulate the steps that companies should take in order to deliver on their responsibility to respect human rights (refer to Kemp & Vanclay 2013). According to Ruggie, the responsibility to respect human rights is centred on the concept of due diligence. There are four aspects of human rights-related due diligence specified within the UN Guiding Principles: identifying and assessing the company's actual and potential human rights impacts (Principle 18); formulating a response (Principle 19); tracking the effectiveness of the response (Principle 20); and externally accounting for the response's adequacy (Principle 21; Ruggie 2011).

Starting 15 years ago, individual, often disconnected, efforts on business and human rights emerged from industry, companies and other actors. In the last six years, a significant role has been played by the UN in focusing and enhancing those efforts, resulting in significant and intensifying industry and company responses. For example, at an industry level, the ICMM, an umbrella body that seeks to promote sustainable development within the mining industry, recognizes human rights as one of its 10 fundamental principles for sustainable development (ICMM 2003). The ICMM has recently released a body of work to guide its members in implementing an appropriate response to human rights risks and impacts (ICMM 2009a; 2009b; 2012). Individual mining companies belonging to organizations such as the ICMM, or who are signatories to voluntary commitments such as the United Nations Global Compact, are increasingly incorporating human rights into corporate policies and standards, and seeking specialist external practitioners to conduct human rights assessments.

Transparency in how this body of guidance is being put into practice is still challenging owing to publicly available information being limited and not necessarily comparable. Lack of transparency in terms of methodology slows the building of normative practice in response to the UN Guiding Principles. However, in the past year we have reviewed, as part of commissioned consulting projects, the corporate standards of six global mining companies and have found all of them to specifically require their operations to conduct assessments of their human rights risks and impacts.

The resulting human rights assessment activity has generated significant demand from mining companies for assessments that identify and build understanding of the human rights impacts, both from their own activities and through their business relationships. Based on the practical experience of the authors, companies seeking assessments of existing operations are looking for approaches that, in addition to identifying human rights impacts, also assess the effectiveness of the operation's current responses to those impacts. Determining the most appropriate solution for meeting this demand is challenging. From a methodological perspective, the UN Framework (Ruggie 2008) and UN Guiding Principles (Ruggie 2011) emphasize that there is no single ‘right way’ to meet the requirement of due diligence and there is no ‘one size fits all’ approach. Rather, the guidance suggests that a due diligence approach be developed by taking into account a range of factors, including the size of the business or operation, the complexity of the context, and the level of risk. Further, only limited practical guidance is provided by either the UN Framework or the UN Guiding Principles for identifying and assessing the human rights impacts of existing operations. The typical impact assessment process is more suited for a proposed development or business activity than an existing one.

There was significantly less guidance on HRIAs and relevant methodologies available when the work discussed in this article began. There is now significant and growing relevant guidance on HRIAs available, with 23 tools and guidance documents identified by the ICMM (2012) in its recent guide: Integrating Human Rights Due Diligence into Corporate Risk Management Processes. It should be noted, however, that much of the guidance currently available remains largely conceptual and should be reviewed critically and cautiously. Detailed sharing by practitioners of their HRIA methodologies and narratives on their development is relatively minimal given the amount of activity in this area. This is a function of a significant body of human rights due diligence being conducted under legal privilege. This in itself should not limit public sharing of methodology, as we have done here, independent of the actual results. The Human Rights Assessment conducted for Goldcorp's Marlin Mine in Guatemala by On Common Ground (2010) is a rare exception. This special issue, as well as HRIA sessions at the conferences of the International Association for Impact Assessment in 2011 and 2012, have provided a forum for interdisciplinary knowledge sharing and have contributed significantly to the development of a widely accepted standard for good practice with regard to HRIA.

The process we used to develop a model HRIA

This review reflects on a methodology used to identify and assess the human rights impacts of existing mining operations. The methodology was designed and developed over five assignments conducted either collaboratively by Banarra and the Centre for Social Responsibility at the University of Queensland (CSRM), or independently by Banarra, which we refer to as ‘the consultants’. It has been refined during two methodology review workshops attended by key CSRM and Banarra team members. The five assignments include four conducted by the consultants, which we refers to as the consultant-delivered HRIAs; and one where the consultants supported a company-delivered HRIA. All assignments related to existing mining operations. A brief description of this body of work is presented below. This is followed by an outline of the resulting model HRIA process and discussion of the four elements that have become central to the methodology.

The initial assignment was to design and deliver a consultant-delivered HRIA to an Australian operation owned and operated by a global mining company. The scope of the assessment covered three of the four aspects of human rights due diligence identified in the UN Guiding Principles. The assessment methodology included a strong emphasis on corporate accountability, drawing on the AA1000 AccountAbility Principles Standard (AA1000APS 2008). The AA1000APS provides organizations with an internationally accepted, freely available set of principles to frame and structure the way in which they understand, govern, administer, implement, evaluate and communicate their accountability (AccountAbility 2008). The Standard is based on three principles that are critical to the realization of accountability: inclusivity, materiality and responsiveness.

A framework was developed that incorporated all of the rights covered by the International Bill of Human Rights, grouped according to 20 areas of potential human rights impacts. Specific assessment questions were developed for each impact area, drawing on the Human Rights Compliance Assessment (HRCA) Quick Check developed by the Danish Institute for Human Rights (2006). These questions were supplemented with additional human rights topics identified through review of the operation's most recently collected social impact data. This included a range of secondary sources such as the results from SIAs, employee and community perception surveys, and trends from community complaints.

Data was collected through a range of methods, including: a desktop review of selected company documentation such as community engagement result reports; a series of interviews with company representatives from across departments such as human resources, procurement and community relations; and interviews with a range of external stakeholders, including local community leaders, Indigenous community representatives and local business owners, representing affected and potentially-affected stakeholder groups. Assessment involved organizing the collected data into three key areas: data related to systems for managing human rights; data related to actual performance with regard to human rights; and data related to performance as reflected in stakeholder views. The identified human rights impacts and the operation's responses to them were tested, with one of three possible results assigned: (1) major gap in response representing material risk; (2) adequate response with opportunity for improvement; and (3) responsive to human rights impacts.

The HRIA model outlined here was developed across five projects for the one company. CSRM and Banarra conducted two reviews of the methodology during this body of work. The first review was completed after the first consultant-delivered HRIA in Australia. This first review resulted in the following changes:

•	Inclusion of a prioritization process based on frequency of sources that identified the impact; this resulted in a more targeted assessment of the potential impact areas.
•	The inclusion of a human rights impacts register that is iteratively contributed to during the HRIA.
•	Inclusion of additional criteria (performance) to assess the effectiveness of systems in managing potential and actual impacts.

The revised process was applied to two subsequent consultant-delivered and one company-delivered HRIA, and informed the development by CSRM and Banarra of a human rights self-assessment tool and process specifically for exploration. A second review meeting by CSRM and Banarra resulted in further changes to the methodology for subsequent application:

•	Inclusion of a briefing paper on the current and historical human rights context upon completion of the initial research.
•	Inclusion of a formal engagement plan articulating the rationale and approach to selecting and engaging with the selected internal and external stakeholders as part of the assessment.
•	Inclusion of an assessment of the operation's community complaints and grievance mechanism against the UN Guiding Principles.
•	Inclusion of a facilitated workshop with company representatives to deliver assessment results and guide the development of responses.

Banarra has subsequently applied this model process and continues to review and strengthen the approach. While the HRIA methodology was developed specifically for the mining context, we believe it can be applied in other sectors.

A robust and adaptable HRIA methodology

The model process for conducting a HRIA (see Table 1) builds on the UN Framework and UN Guiding Principles but has been targeted to address the particular assessment needs of existing mining operations. Step 1 provides the human rights context and understanding that establishes a rights-holder's perspective by presenting the key human rights issues within the operating context. It also provides significant context for better understanding the current and potential human rights impacts associated with the company's activities. Step 2 compiles a human rights impacts register, drawing on a range of sources, such as context research conducted in Step 1, as well as direct engagement with stakeholders. Prioritization is then conducted based on primary and secondary data analysis, to enable a targeted assessment in Step 3. The final step assesses the effectiveness of the management response to the human rights impacts.

Table 1 Key steps of refined HRIA model process for existing operations.

Step 1: Establish human rights and organizational context	Step 2: Identify and prioritize human rights impacts	Step 3: Assess impacts and deliver results
Establish current and historical human rights context at national, regional and local levels and present findings to the operation's representatives in a briefing paper	Engage stakeholders externally and internally, and educate on business and human rights	Assess the operation's management of human rights impacts based on a review of the operation's systems, performance and stakeholder views of that performance
Identify relevant stakeholders, including potentially affected communities	Request and review existing secondary data collected by the company, including issues raised through the grievance mechanism	Assess grievance mechanism and/or complaints processes against the UN Guiding Principles' effectiveness criteria
	Identify issues raised in the data which present potential and actual human rights impacts	Deliver workshop for key company management and staff to present findings and to facilitate the identification of responses
	Prioritize potential and actual human rights impact areas based on frequency, severity and company influence through analysis of primary and secondary data and compile a human rights impacts register	In a consultant-delivered HRIA, recommendations are also provided

The aim of developing this model HRIA was to provide a robust and adaptable process for identifying and assessing human rights impacts. To achieve this, the model is aligned with the UN Framework and UN Guiding Principles. It is also scalable and applicable in a range of different operational contexts, both within the mining industry and across other sectors. Four elements emerged in our model as central to fulfilling these requirements and are described below.

Building a better understanding of context

The process starts with understanding the human rights context to build a better understanding of the operating context from an anthropocentric perspective rather than an operation/project perspective. This has been a notable development in the methodology since its first practical application in 2010. Establishing both the current as well as historical human rights context in which a company operates has been critical to understanding both the level of complexity and the level of risk relating to any actual or potential human rights impacts. The UN Guiding Principles recognize both these factors as important considerations for determining the most appropriate scope and methods for an assessment (Ruggie 2011).

The contextual research builds a comprehensive external and internal picture by reviewing available external social and human rights research, including external commentary from human rights NGOs, and internal sources from within the operation, including SIAs, perception surveys and other relevant records such as monitoring and evaluation results. The analysis of such documentation provides valuable insights in terms of identifying those human rights impacts that persist over the life of the operation, suggesting a possible ongoing failure of the operation to manage or respond to these impacts. It helped to identify factors that suggest the potential risk for significant but as yet unidentified human rights impacts. While some of these factors are obvious, such as armed conflict at the regional or country level, others may be less evident, such as inequitable domestic distribution of resource extraction benefits. For exploration projects, there is usually less existing secondary data available so primary data collection through interviews with key informants assumes a greater role.

A briefing paper with the results of the contextual research provided by the consultant to the company facilitates a shared understanding of the human rights context. This shared understanding enables a more informed conversation between the consultant and the company regarding the scope and methods for the assessment and also triggers early identification of any company sensitivities to human rights issues. The nature and structure of the briefing paper can be adapted to suit any point in the development of a mine from exploration to closure. For example, at the exploration stage, the briefing paper can focus on those factors that could lead to systematic human rights abuses. For an existing operation, the briefing paper can provide the history of human rights issues that the community associates with the operation's presence.

Focusing on the human rights of most relevance

This element arose in response to the first application of the consultant-delivered methodology in 2010. That first application used the HRCA Quick Check (Danish Institute of Human Rights 2006) as a base to consider all potential human rights impacts equally for an Australian-based mining operation. While this approach was comprehensive, it proved impractical for the consultant, who had limited time in the field to complete the assessment, and overwhelming for the client given the enormous range of rights being considered. This resulted in Banarra and CSRM incorporating into the methodology a determination of the human rights impacts that are most likely to be material to the mining operation in its particular context.

Ruggie (2011, p. 13) acknowledges that, while the responsibility to respect applies to all internationally recognized human rights, ‘some human rights may be at greater risk than others in particular industries or contexts, and therefore will be the focus of heightened attention’. This idea was also central to the company requirement that led to this body of work, which was primarily intended to ensure that human rights impacts presenting a ‘material risk’ to the business were being appropriately managed. This interpretation of risk is more limited than the UN Guiding Principles, which require assessment of risk to go ‘beyond simply identifying and managing material risks to the company itself, to include risks to rights-holders’ (Ruggie 2011, p. 16). The prioritization methodology developed considered both these dimensions of risk.

Prioritization involved commencing an analysis with the whole range of human rights, and using initial engagement with internal staff from areas such as human resources, community relations and procurement, as well as a desktop review of publicly available and internal information, to identify the potential impact areas that were most material. This prioritization considers factors such as the frequency with which the issue is identified within the data set, as well as the severity of the impact and the company's level of control or influence (Baab & Jungk 2010). It is important to note, however, that the assessment team remained open to identifying other impacts during the field work that may not have been identified in the initial desktop research. The field work involved extensive primary data collection, predominantly through interviews, small group interviews or larger group engagements. This approach enabled a more targeted assessment, focused on validating and testing the impacts of most relevance as well as the company's response to them.

Placing greater emphasis on effective management and systems

As the bulk of the work informing this article involved consultant-delivered HRIAs for existing operations and activities rather than exploration or other stages of the mining cycle, the assessment approach required emphasis on both the identification of human rights impacts and on the effectiveness of existing responses to such impacts. This is consistent with the intent of the UN Guiding Principles, which is ‘to achieve tangible results for affected individuals and communities, thereby also contributing to a socially sustainable globalization’ (Ruggie 2011, p. 6). The methodology therefore not only identified and assessed impacts, but also sought to test and provide an opinion on the adequacy of the company's responses to such impacts. Testing the adequacy of response drew on the AA1000 Accountability Principles Standard and its ‘Responsiveness’ criteria, which are used in the model to assess the quality of a company's management of key human rights risks. The inclusion and consideration of internal and external stakeholder views within the methodology is as a key measure to determine the adequacy of company performance.

In its most recent application, the methodology has further expanded beyond the due diligence requirements of the UN Guiding Principles to include testing the effectiveness of the operation's remedy mechanism using the effectiveness criteria under Guiding Principle 31 (Ruggie 2011).

Incorporating a human rights educational component

A key insight from our practical HRIA experience is the opportunity the HRIA process offers to have a different type of conversation within a resource company about human rights. The five projects conducted highlighted that awareness of the responsibility to respect human rights was limited at the operational level of the company. While the corporate entity had formally responded to the requirements of the UN Framework through its commitments and standards, the assessment process was often the first explicit engagement of operational level personnel with the human rights discourse. As a result, understanding of the responsibility to respect human rights and, inherent in that, its practical implications for those managing the relevant areas of the operation, was often very limited.

Human rights are multi-dimensional and cut across a range of aspects that need to be managed in mining operations, including environment, cultural heritage, conflict, community engagement and development. As a result, the human rights discourse is an anthropocentric conversation that brings together those with responsibility for decisions that have the potential to affect people within and outside the mine-site fence. Our initial applications of the model have significantly focused on engaging and educating those decision-makers. While in many of the operations assessed by Banarra and CSRM there were already comprehensive programmes in place that addressed human rights, the assessment teams frequently encountered resistance to framing issues in human rights terms, even in terms of reference to the company's own human rights policies and standards. To enable the assessment process to be delivered effectively in this context, the methodology needed to include an educational component, delivered through cross-departmental conversations. The nature of these cross-departmental conversations has, in many cases, opened up the possibility for change within the organization, truly delivering the intent of the UN Framework and UN Guiding Principles.

Possible future directions of HRIA

The authors sought to develop a robust and adaptable process that responds to the intent of the UN Framework and Guiding Principles. We specifically went beyond the Principle 18 (on impact identification and assessment) in the Guiding Principles to develop an approach that also addressed Principles 19 and 20 on formulating and tracking effectiveness of a response. The model process that was developed drew on different established disciplines such as SIA and sustainability assurance. This multi-disciplinary influence raises questions about the future directions of HRIA. Is HRIA a hybrid or emerging discipline in its own right? Or does it have a natural home within an established discipline such as SIA?

There are implications for a new methodology or area of practice when an established discipline or profession dominates. While exploring these implications is beyond the scope of this article, one implication is clear. If an established profession does dominate HRIA, it is more likely that their established methodologies and norms will have the greatest influence on the future direction of HRIAs. Members of the impact assessment community have asserted to the authors that HRIA has a natural home with them, alongside SIA and other impact assessments approaches such as health impact assessment and heritage impact assessment (Esteves et al., 2012). The authors have previously considered placing the ‘human rights lens’ over an operation's impacts through an SIA process, recognizing that there may be a human rights dimension to each social impact. However, the research for this article has indicated that, in order to maximize the positive social outcomes in this emerging area of practice, assessments need to go beyond identifying and predicting impacts, and consider both systems and capacity building. The authors needed to look elsewhere to assess systems, such as remedy mechanisms, and for approaches that involve significant internal capacity-building. The corporate accountability field provided effective solutions to these challenges, especially in terms of the AA1000 Assurance Principles Standard and its principles of Inclusivity, Materiality and Responsiveness (AccountAbility 2008). These principles have directly informed our model and are especially pertinent for testing Principles 19 and 20, formulating and tracking effectiveness of a response.

For companies seeking to fulfil the due diligence requirement of the UN Guiding Principles, a risk-based approach is emerging as an alternative to impact assessment. Based on the authors' direct experience engaging with mining company clients, adapted risk assessment methodologies should be considered. The authors' initial experience suggests that assessments which are less intensive from a financial and human resource perspective, similar to the traditional, internal, team-based risk assessments, can suitably identify and assess human rights risks. Based upon this initial human rights risk assessment, a company can then make a more informed decision about whether a comprehensive impact assessment would be valuable. This leads to the question of whether HRIA is really the most appropriate label for the assessments required to fulfil the due diligence requirements of the UN Framework and Guiding Principles. Perhaps the term ‘impact’ detracts attention from the real focus: respect for human rights. The human rights agenda may represent a significant shift in the dynamic between companies and people. It invites mining company managers to acknowledge that they do not simply have a responsibility to mitigate impacts on people, but rather have a responsibility to respect the rights of people.

To fully realize the potential of the human rights agenda in enabling companies to take account of, and be held to account for, their impacts, further discussion and debate amongst companies and interdisciplinary practitioners is needed. We also acknowledge that the voice of impacted peoples is missing from this article and needs to be part of influencing the direction of HRIAs. Questions that need to be considered further include, but are not limited to:

•	Do companies seek a compliance-based response to the UN Guiding Principles, or more fundamental change within their business?
•	How should the requirements of human rights due diligence be addressed to maximize positive social outcomes?
•	Is this an area that requires a new hybrid set of capabilities rather than a simple extension of what is currently being done in SIA?

Conclusion

The model process outlined in this article was developed to respond to the intent of the due diligence framework outlined in the UN Guiding Principles. Through practical application and refinement, we developed an approach that assesses human rights more comprehensively than just identifying impacts. In response to the need to maximize engagement and understanding of human rights at the operational level, capacity-building in the form of cross-departmental conversations was incorporated. In addition, we have taken a more in-depth approach to assessing a company's systems than would be part of conventional impact assessment. Ultimately, we found that a hybrid approach, which goes beyond identifying and assessing impacts, can add significant value internally by catalysing a deeper understanding of the company's responsibility to respect human rights.

The outcomes of this review suggest that a robust and adaptable HRIA process can be delivered using aspects of more disciplines than just impact assessment. In this context, is the future of HRIA situated within an established discipline such as impact assessment, risk assessment or corporate accountability, or does it emerge as a discipline in its own right? We conclude that it is too early to confine the assessment of human rights impacts within any established discipline, and doing so could limit its potential. As this emerging field of practice continues to develop, it is important that both companies and interdisciplinary practitioners continue to question both the intent of HRIAs and the most appropriate methods for delivering on this intent, including considering solutions that draw from a range of disciplines.