Comment: Case Studies on Human Rights Impact Assessments
On 13 June 2017, twentyfifty and NomoGaia co-hosted a webinar highlighting three case studies of human rights impact assessments. twentyfifty presented a case study on the extractive sector, NomoGaia presented a case study on agriculture and BSR presented on a HRIA in the beverage industry.
- Amelia Knott, Director of Consulting, twentyfifty Ltd
- Kendyl Salcito, Executive Director, NomoGaia
- Salah Husseini, Manager, Human Rights, BSR
There were a large number of questions asked during the event and we were not able to respond to all of them so below are our joint answers to those that were not addressed at the time:
What criteria are you using to put together your team?
For a rapid, risk-oriented assessment like the agriculture case study, human rights expertise with experience in the country/region and industry/sector. For a full-scale HRIA, NomoGaia’s teams often include a human rights expert, ethnographer/anthropologist and environmental health specialist (epidemiologist). twentyfifty’s teams contains individuals with sector, country and thematic experience, for example an expert on conflict would be included if the HRIA is in a fragile area. BSR, NomoGaia and twentyfifty all emphasize the need for local expertise as well.
If as a result of an assessment, a company understands it's no longer welcome in an area by local communities - would you recommend the company to leave the area ?
It depends on the area and the company. There are certain contexts where legacy issues might make it truly impossible to operate rights-respectfully – picture a mining district where decades of environmental degradation and social/economic disempowerment became the touchstone issues for violent conflict. A mining company that was historically part of that legacy might not be capable of re-entering that market and rebranding itself with a rights-respectful approach. It may be too difficult to bridge the gap between local perceptions of that company and the (modernized) company’s self-image. That said, there are major human rights implications associated with departing an operation, related to (1) who will purchase it and how will that entity operate the site, or (2) how comprehensive the closure plan is, if the operation won’t be sold. In other words, there is no single answer to the question – the HRIA could be used as a decision-making tool for determining whether leaving the area is appropriate (and if so, how to exit). A European telecoms company actually used their HRIA as an input into a decision to leave several Eastern European markets in 2016.
[To NomoGaia] How did you get the company to cooperate with you on the HRIA where they hadn't commissioned it? To what extent did you involve the community?
NomoGaia has conducted over a dozen human rights assessments on operations worldwide, making them public and cooperating with both companies and communities. Companies work with us partly because it’s the only way to make sure their input is included in an assessment that will have input from civil society, government and communities. We always reach out very openly to companies explaining our intention to pilot human rights assessment methodologies, and that has, with one exception, always worked for us.
“To what extent did you involve the community?” I’m not totally sure how to answer this. There isn’t a single ‘community’ at Palm Bay (or at any site, for that matter). There are employees, subcontractors, families of workers, local residents and landholders, and displaced people. They are male, female, and of all ages. We make interviews a central feature of every assessment, because there is no way to assess human rights impacts without learning directly from rightsholders. That said, we don’t use the approach of empowering a local civil society group to speak for “the community” and represent human rights issues. This is partly because it’s too time consuming for a rapid assessment. It’s also partly because, in our experience, different rightsholder groups experience different impacts, and some populations are positively impacted while another is harmed with regard to the same right. As such, designating one perspective to represent “the community” risks leaving other voices unheard.
To what extent did any of you engage with local government officials during your field work? What factors play into a decision to engage with local officials?
For twentyfifty’s case study, we did engage with local government departments responsible for issues such as environment and water resources. We tend to engage with local officials to better understand the context and to understand how effectively our client is at coordinating its activities with local, regional and national development plans.
For NomoGaia in Liberia, there are traditional chiefs as well as local politicians linked to central government. We engaged with a small number of traditional chiefs but not politicians, who did not seem to have decision-making power. We often reach out to government ministries that make decisions pertinent to industry – we reached out to the Environmental Protection Agency and to the working group that established Liberia’s minimum wage. Factors relevant to deciding whether to engage with local officials for us include: (1) is it good manners/protocol to engage with local officials, and do we risk presenting ourselves as rude interlopers if we do not, (2) to whom are local officials accountable? If they are locally elected they might have reason to be personally concerned about adverse impacts, (3) do local officials have relevant information to the project (cadastres, crop pricing information, environmental monitoring data, health data, legislation pertinent to a particular region, etc)?
For BSR, it depends on the scope of the engagement and whether outreach to local external stakeholders is part of the project scope. For example, we have engaged with local labor inspectorates to get a sense of what the local government has identified as major labour concerns, what their enforcement mechanisms look like, and the effectiveness of that enforcement.
Was the HRIA report an internal document? And if so, how did you or the client manage feedback to the external stakeholders that provided input during the impact assessment?
HRIAs for the extractive and beverage companies were internal documents.
twentyfifty: We always encourage clients to publish the result of the HRIA (or at least a summary) but we are not always successful in doing so. Where HRIAs are not published, we push strongly for the client to provide feedback to stakeholders and rightsholders who participated in the assessment and this is usually managed through their teams on the ground. We also build in validation workshops to review findings with stakeholders, although it may not always be possible to include everyone at these for logistical reasons.
BSR: Generally impact assessment reports are internal, but often clients may choose to report out on certain findings or integrate priorities identified during the HRIA process into their Human Rights or Sustainability reports, as well as into their externally-facing human rights policies. They may also report out on certain findings to the Dow Jones Sustainability Index or other ratings and rankings agencies. The level of feedback to external stakeholders just depends on the level of engagement the particular client is comfortable with.
NomoGaia: The assessment for EPO was not internal and so findings are publicly available and were reported directly to affected populations. In Kendyl’s work as a consultant, though, assessments have been internal but the Terms of Reference explicitly state that a phase of assessment is “validation” with affected rightsholders. In this process, findings are presented directly to community members in a follow-up field visit. For populations with low literacy rates, these findings are often presented in video or photographic format, accompanied by a narrative describing findings. Rightsholders are asked to weigh in on whether the assessor has accurately reflected local experiences or if key perspective is missing. This has to be done in small-group, disaggregated, or one-on-one settings (rather than a single workshop for the whole “community” in acknowledgement that certain sub-groups are unlikely to voice concerns in the presence of certain other sub-groups).
Since HRIA identifies rightsholders and duty bearers, did you ever identify a fear for future litigation with companies you worked for in relation to identified HR impacts and does this ever influence mitigation proposals?
Any idea why such few HRIAs are public?
Two questions that are closely linked. Companies are frequently afraid that they will be sued for human rights findings, and that is part of the reason why they protect them from publication (additionally, some consulting firms make their methods proprietary and do not permit publication of their assessments). This same fear characterized early resistance to Environmental Impact Assessments (EIAs) in the 1970s. Swiftly after EIAs became mandatory, though, it became clear that having actionable information better equipped companies to manage risks, rather than putting them at risk of litigation. The most compelling current case for publishing HRIA is Nevsun’s Bisha mine HRIA in Eritrea. The company commissioned an HRIA that identified major human rights issues before it was sued in Canadian court for human rights violations. The HRIA was not what brought the violations to light, but it is being used by the company as an indicator that it has worked hard to address the human rights issues it has identified. Nevsun has found great value in its human rights due diligence, expanding it to other operations and working with the same consultant on two separate projects at present.
How long from when the company first engaged you to when you finalized findings?
The extractive project took roughly 9 months for finalization. The agriculture assessment took roughly 3-6 months. The beverage project is actually still ongoing. HRIAs can vary significantly in size and scope – at BSR, typically they are at minimum 4 month affairs for corporate-level HRIAs. We have done numerous multi-market HRIAs, which can stretch well past a year.
Doesn't a human rights lens open up to issues not well covered in the IFC performance standards, e.g. children's rights/impacts on children, and risks to civil rights, e.g human rights defenders who might be opposing a project?
Absolutely. The IFC Performance Standards (PSs) are well directed towards standardized benchmarks, but they are less well equipped to manage the nuanced risks faced by particular vulnerable groups or particularly challenging contexts. The PSs, for example, are not tailored for post-conflict conditions. The IFC PSs can only go so far and the human rights lens provides a perspective that meets the gaps that remain.
I wanted to make a comment on the SIA/HRIA issue: also a human rights based approach in terms of process (vulnerable groups, etc.)
Absolutely. Social impact assessment (SIA) is supposed to focus particularly on vulnerable groups, though there is no established method for identifying vulnerable groups in SIA. HRIA relies more heavily on inequity and inequality as a basis for identifying vulnerable groups.
Nowdays, environmental impact assessments include a social component, to what extent does the social integrate human rights issues?
It depends on the SIA team. In theory SIA should always integrate human rights issues. In practice, that rarely happens. This is partly because human rights is a lens for viewing issues, so it is not easily disposed to being integrated into the established processes carried out by social consultants. It’s also because SIA has, over time, become very oriented towards a handful of benchmarked issues (education, health, employment, etc), which makes it poorly equipped to navigate the complicated territory of fears and perceptions. As Amelia noted in her presentation, rightsholders experience impacts and wish to engage relationally – SIA in its current form is transactional, oriented around a handful of surveys, interviews and workshop sessions.