BSR Conference 2012: Fast Forward / October 23-26 / New York

Identifying an Effective Remedy for Human Rights Impacts

One-Hour Conversation Session / October 26, 2012

Speakers

  • Jonathan Drimmer, Vice President and Assistant General Counsel, Barrick Gold Corporation
  • Natalie Bridgeman Fields, Founder and Executive Director, Accountability Counsel
  • Faris Natour, Director, Human Rights, BSR (Moderator)

Highlights

  • Access to remedy cannot be a one-size-fits-all approach. Each violation and remedy needs to be understood from the local perspective and designed to meet local needs.
  • Communities have locally appropriate ways to resolve conflicts, and companies need to respect those processes.
  • Even in the best cases, company-level remedies are not a substitute for judicial remedies.

Memorable Quotes

“Corporate culture is very important. While companies may have the best intentions and the most well-meaning corporate executives, it is often not translated to the local level, where corporate values tend to be absent. Companies should imbed their value system into the grievance and remedy processes.” —Natalie Bridgeman Fields, Accountability Counsel

“Having community buy-in for grievance and remedy processes is critical. Without community buy-in, processes can cause great harm in the long term.” —Jonathan Drimmer, Barrick Gold Corporation

“Remedies are critically important. If a company doesn’t provide their victims with access to a remedy, it renders the whole human rights framework meaningless.” —Faris Natour, BSR

Overview

Natour opened up the session by highlighting the importance of effective grievance mechanisms and remedies for victims of human rights abuses. He proceeded to recognize that appropriate remedies may not be available for some of the most harmful human rights abuses, but that efforts to remedy harm should still be undertaken.

Natour then asked the participants to describe the avenues of remedy available to victims of human rights abuses. Bridgeman Fields laid out a number of key routes: judicial systems, national human rights institutions, multi-stakeholder mechanisms, labor tribunals, industry-specific tribunals, and accountability mechanisms tied to international finance and development institutions. In addition, she noted that project-level or “operational level” grievance mechanisms, if designed carefully, may serve as a first-resort to offering remedy.

She then highlighted that, while it is the state’s responsibility to provide judicial mechanisms to remedies, victims are often unable to access appropriate judicial structures due to a lack of state resources, high levels of corruption, or lack of state capacity. In those cases it is important for victims to have access to non-judicial mechanisms and remedies.

Drimmer interjected to state that, from his point of view, companies have a responsibility to not only provide operational grievance mechanisms and remedies, but also to support the establishment of rule of law by helping governments train lawyers and judges as well as promoting effective judicial systems.

Natour then asked the panelists to walk through the remediation process. Bridgeman Fields said that a company’s first action should be to conduct robust due diligence to determine what an appropriate accountability framework should look like. Ideally, the framework should then be built on collaboration with the community and, as the Guiding Principles on Business and Human Rights lay out, be legitimate, accessible, equitable, transparent, rights-compatible, and a source of continuous learning.

In addition, Bridgeman Fields explained that grievance mechanisms should be independent—a key criteria for the ultimate success of the program. Finally, Bridgeman Fields provided three recommendations for providing private access to remedy if an abuse has occurred and there is no pre-existing grievance mechanism:

  1. Hire an independent team to launch investigations of potential human rights abuses
  2. Take responsibility for violations, where appropriate
  3. Work with the affected community to create the grievance mechanism

Drimmer then described how the process typically takes place at Barrick. The company first establishes grievance mechanisms outside of the company office in the local community. In addition, the company gathers potential complaints through other reporting mechanisms—internal, external, and intermediaries. Once a serious human rights complaint is lodged, the company deploys someone to the site to conduct an independent investigation. If the claims appear to be legitimate, the company creates either an independent structure to determine appropriate remedies or partners with a trusted intermediary, such as a local NGO, to implement the remedy process.

When asked if the process works, Drimmer said it can—if it is designed in partnership with communities and implemented appropriately. In cases where the remedy process fails, it is often due to disagreements on facts or what an appropriate remedy looks like. In these cases, remedies can exacerbate tensions with communities that feel the process has not been fair.

An audience member then asked panelists to comment on the question of resource-sharing in poverty-stricken communities where companies operate. Bridgeman Fields responded by saying that, from her perspective, when a company comes in to extract resources from poverty-stricken communities and where the state is failing to act, it becomes the company’s job to be accountable for the development needs of that community. Drimmer presented a slightly different perspective, cautioning companies to be careful not to step outside the bounds of their responsibility to respect the state’s duty to protect.

Another question from the audience focused on the responsibility of companies to provide access to remedies for impacts conducted by third parties. Drimmer responded by saying that it depends on the company’s relationship with the third party. If the third party is a supplier, it is important to include provisions in contracts that require suppliers to have appropriate grievance processes, and to allow the company to conduct appropriate investigations of the supplier’s activities in cases where there have been claims of human rights abuses.

Natour then closed the session by highlighting the importance of thinking holistically about engaging and embedding human rights into the corporate culture, from headquarters to the field.



Thank You, Sponsors

Executive Sponsors

Cisco Hitachi PwC Target UL Responsible Sourcing

Associate Sponsors

Anheuser-Busch InBev

Supporting Sponsors

Adobe AT&T ExxonMobil Green Mountain Coffee Roasters, Inc.

Participating Sponsors

American Express Baker & McKenzie LLP Best Buy BNY Mellon Ford Hyatt Hotels Corporation The Walt Disney Company UPS Vale

Contributing Sponsors

Chevron icix Levi Strauss & Co.

Convening Media

Bloomberg Business Week Weber Shandwick

Marketing and Media

3BL Media BEF Caixin Media Corporate Knights Globescan GreenBiz Group Inc. Hemlock Responsible-Investor Sina Stanford Social Innovation Review (SSIR) Tomorrow Partners