4.1. Stakeholder Engagement Strategy
a) The company may be faced with community-related security issues caused by unidentified root causes, unaddressed impacts of the operation or unfulfilled commitments. In these situations, tensions with communities may persist despite efforts by the company to address them.
Develop a map of all company facilities and identify the areas where company operations are likely to have an impact (i.e. “impact areas”)
- Consider not only the primary project site(s), but also all related facilities and transport routes. (IFC: 14)
- Conduct a stakeholder mapping and analysis exercise in the impact areas. (See Challenge 4.1.b.)
Before commencing new projects, conduct a baseline assessment, or any other type of assessment allowing to understand the existing conditions, in the impact areas
- Identify pre-existing issues, such as historical inequality, legacy issues from previous operations, the existing human rights situation, social tension (e.g. previous protests over land or resources), existing infrastructure and the extent of public service provision.
- When entering into a joint venture with, or taking over operations from, another company, identify and assess the prior interactions between the industry, in particular the other company, and local communities.
- Start stakeholder engagement as soon as company staff or contractors set foot on the ground. (PDAC: 8) (See Challenge 4.1.b.)
- Consult with local authorities, embassies, other companies, international organisations, NGOs, local staff and local communities (including traditional leaders, women, youth, ethnic minorities or other under-represented groups) to gain insights into the local political context and power structures, existing social order, social relations and other relevant issues. (OECD 21)
- Use a variety of sources to conduct the assessment such as: independent third-party country risk assessments and conflict analysis (if they exist), “existing stakeholder databases, consultation and grievance logs, environmental and social impact assessment studies and consultation processes completed for an earlier phase of the project, annual environmental monitoring reports, and community investment plans of the company, local government, or other businesses in the same locality”. (IFC: 113)
- Collect baseline data that is disaggregated by sex, age, and other categories such as ethnicity, religion and socio-economic status.
- Consider hiring experienced consultants that are familiar with international social assessment standards and/or anthropologists with knowledge of local indigenous groups to help with the study.
Conduct a comprehensive risk assessment and update it regularly
- Assess not only risks to the business, but also risks to local communities resulting from the company’s presence and operations. Analyse at least the following potential sources of heightened risk (Shift: 5):
- The broader operational context, including factors such as conflict, potential for violence, corruption and weak governance, (Shift: 5) as well as the State’s law enforcement capacity and the “judiciary’s capacity to hold accountable those responsible for human rights abuses and (…) violations of international humanitarian law”. (VPs: 3)
- Business relationships, including the ability of suppliers, joint venture partners, customers and others to manage human rights risks, based on their experience, track record and management capacities. (Shift: 5)
- Business activities, including activities commonly associated with human rights impacts, such as land acquisition and use, grazing, resettlement and extensive water usage. (Shift: 5)
- The presence of vulnerable groups. (Shift: 6)
- In situations of armed conflict, conduct a conflict analysis as part of the risk assessment. (See Challenge 2.1.b.)
- Analyse the implications of business operations on the dynamics of conflict, since this is key to identifying potentially significant risks of criminal and civil liability for the company, for complicity in violations of international humanitarian law.
- Conduct an analysis of all parties to the conflict, to understand their positions and interests, their human rights record and their relationship to other actors and local communities.
- Take into account that not all cultures are open to talking about conflict issues with outsiders. In a politically sensitive area it can be very risky to talk openly about conflict. It can be very useful to draw on the help of a conflict expert or someone practiced in community consultation. (PDAC-CDA: 11)
- Assess and evaluate the likelihood and potential consequences of risk scenarios that pose the greatest harm to the operation and the local community. (PDAC-CDA: 5)
- Note that risks and grievances are likely to vary depending on the stage of the project cycle and the magnitude of the activities of the project.
Conduct an impact assessment and update it regularly
- Assess the different types of environmental and social impacts, considering all internationally recognised human rights norms, standards, and expert bodies’ recommendations.
- Assess cumulative impacts on stakeholders of previous operations that the company may be contributing to, understanding that the dynamics between the company and the community is not based on the impact of its operations alone, but should also take into account the accumulation of impacts from other companies in the context.
- Seek to understand the concerns of stakeholders both within and outside the delimitation of the operations by consulting them directly. In situations where consultation is not possible, consider other alternatives, such as engaging with credible and independent experts, such as civil society groups and human rights defenders. (GPs: 20)
- Ensure all relevant company departments (security, community relations, operations, human resources, contracts, etc.) assist in identifying the scope of their activities and in understanding how they interact with and impact the community. (See Challenge 4.3.b.)
Impact Assessments should consider the following aspects:
Collect information about the potential impact of a project on communities in consultation with women, men, indigenous peoples, migrants, members of different socioeconomic, caste, ethnic and religious groups and community organisations. (Oxfam: 9)
• Consult with specialised organisations working with vulnerable groups.
• Adopt a gendered perspective, as women and men may be affected differently by company operations.
• Obtain information about child rights impacts from adults who have close contact with children or expertise in children’s rights.
Arrange separate meetings for the women of the community, conducted by female members of the assessment team.
• Use participatory research methods that actively engage community members in the assessment (e.g. focus groups, public perception studies, multi-stakeholder meetings).
• Explain the purpose of the assessment and how the information gathered will be used.
• Ensure that participants can express their views in their local language. Interpreters should be independent of the company (and, if possible, of local communities) to avoid bias.
Publically report results of the impact assessment, if this has been mutually agreed upon with the community. (EO100: 28)
• Consider all direct and indirect impacts of the company’s operations on local communities, including: in-migration, displacement, loss of land, loss of livelihood, loss of biodiversity, all forms of pollution, prices of goods, services and accommodation, rise in violence and crime, effects on community health, damage to religious, spiritual or cultural sites of significance, and increased socio-political tensions, strife or conflict.
• Record and follow up on all concerns voiced by community members.
• Ensure that the assessment team is familiar with the local setting and make sure that your team generates trust and confidence among affected communities.
• Work in partnership with reputable third parties that know the history and relations of local communities. “Relevant partners can be local and international civil society organizations, development agencies, or think tanks and universities.” (UNGC: 11)
Extent and Scope
• Consider impacts throughout the various stages in the life cycle of the project.
• Update the impact assessment regularly and before any new stage of the project.
Develop a risk and impact mitigation strategy that is adapted to the local context (See Challenge 4.4.a.)
Develop effective policies and mechanisms for identifying and settling disagreements and grievances (See Challenge 4.1.e.)
Follow up on commitments made by the company and update stakeholders regularly on the status of implementation
- Make it clear to the community who from the company is able to make commitments to the community.
- Keep a registry of commitments made by the company, update this regularly and share it with concerned stakeholders in a manner that is accessible and understandable to all. Ensure that the registry includes:
- Record of final agreements reached with the communities, ensuring these are verified and validated with those present during the negotiations; (OECD 2015: 50)
- Timelines for implementation, the responsible team or person, and some detail on the agreed methods of implementation;
- Current status of implementation;
- Record of ongoing negotiations and issues for which agreement has not been reached yet, as well as implications for the project planning. (OECD 2015: 61)
- Provide an opportunity for stakeholders to express their satisfaction or dissatisfaction in the implementation of commitments. (OECD 2015: 62)
- When implementation differs from what was previously agreed, provide an explanation to stakeholders and give them a chance to react before final decisions are made. (OECD 2015: 62)
Establish a monitoring programme to assess the company’s performance
- Track changes in stakeholder relationships and monitor stakeholder perceptions regarding the company as well as the project. (IA-ICMM: 10). Use an annual or semi-annual “perception” survey, independently administered, which repeats the same set of questions to monitor changes over time. By gauging changes in satisfaction levels and identifying the underlying causes, the survey information can be used by staff and managers to take actions, where necessary, to improve communications and get relationships back on track. (IFC: 108)
|Public perception surveys qualitatively assess how people understand and feel about their situations or environments. They may be used to ascertain people’s impressions of a company’s performance or actions. Perception surveys are particularly useful to monitor and evaluate the implementation of good practices by a company, or to identify needs, problems and trends.
- Develop indicators that are measurable and gender-sensitive, including both positive and negative, and quantitative and qualitative indicators. Empirical data should be collected to monitor key impacts or control measures, a reduction or lack of complaints should not be used as an indicator of the actual situation (e.g. a lack of complaints may mean that the grievance mechanism is not being used or trusted).
- “Consider establishing a participatory or third-party monitoring programme.” “Involving project-affected stakeholders or outside third parties in monitoring (the) company’s performance can lend a great deal of credibility and accountability to a monitoring programme and the overall project. Affected parties can participate in scientific sampling, observations, group discussions, and assessments” of environmental and social performance. (IFC: 147)
- Where perceptions have become more negative, open a dialogue with stakeholders as to why, and how this can be addressed, involving third parties in the discussion if necessary.
b) Communities often comprise multiple sub-groups with different power structures, interests, needs and vulnerabilities. In these situations, inclusive community engagement can be particularly challenging and companies may face the risk of favouring or inadvertently excluding some sub-groups, thus creating or fuelling existing tensions.
Before commencing new projects, conduct a baseline assessment and an impact assessment (See Challenge 4.1.a.)
Conduct a stakeholder mapping exercise in the areas where the project will have an impact
- Determine the stakeholders both directly and indirectly affected by the project, as well as those with the power to affect operations.
- Ensure that all vulnerable groups (e.g. women, youth, elders, migrants, indigenous peoples), and their characteristics, have been properly identified and understood.
To understand gender roles consider the following aspects:
- “Women’s and men’s social roles and the gender division of labour”; (Oxfam: 4)
- “The differences between women’s and men’s access to and control of resources”; (Oxfam: 4)
- Factors that influence the above differences; (Oxfam: 4)
- “The influencing roles of state, market and community institutions and how they may perpetuate gender inequality”; (Oxfam: 4) and
- The diversity within men’s and women’s groups across socioeconomic, caste, ethnic, age and religious lines. (IFC: 60)
- Remember that certain stakeholder groups, such as indigenous peoples, might be pre-defined through regulatory requirements. (See Challenge 4.1.d.)
- Take into account the fact that “communities lying just outside of the designated project impact area can ‘perceive’ impacts or feel they have been arbitrarily excluded from project benefits. For these reasons, defining stakeholders too narrowly should also be avoided.” (IFC: 14)
- Undertake a stakeholder analysis.
- Consider pre-existing relationships within and between stakeholder groups and identify possible sources of conflicts between the stakeholders.
- Use the “needs, positions and interests” model to understand “the complex set of motivations and agendas that actors may have” regarding the project. (IA-ICMM: 18)
Needs, positions and interests model
The ‘needs, positions and interest’ model assists companies to understand the dynamics in community (and other stakeholder) engagements through the identification of three layers: a) positions - what an actor expresses, b) interests - what an actor really wants, and c) needs - what is essential to the actor. Companies should be aware that the first layer, positions, does not necessarily accurately reflect interests and needs and that, while several stakeholders may hold the same position, the individual interests that drive their position may be very different. All three need to be analysed and understood for the company to be able to successfully approach community engagement. While interests can be subject to negotiations and compromise, needs are non-negotiable and must be fulfilled for stable community relations. (IA-ICMM: 18[H1] )
- “Develop and maintain a stakeholder database.” (IFC: 103) Ideally, it should contain:
- “Details of the various stakeholder groups (their representatives, interests and concerns)” (IFC: 103), identifying the most vulnerable groups;
- Details of any consultations held, including location, participants and topics discussed; (IFC: 103)
- Any commitments made by the company, including both those outstanding and those already delivered (IFC: 103); and
- “A record of specific grievances lodged and the status of their resolution.” (IFC: 103)
- Review and update the stakeholder map regularly, since “both stakeholders and their interests might change over time”. (IFC: 16).
Develop a stakeholder engagement strategy
- “Develop a ‘Do’s and Don’ts’ guidance note for community engagement and community entry”, (PDAC-CDA: 7), as well as “talking points” so that messages are consistent and personnel are prepared to answer stakeholder questions regarding relevant issues such as land, compensation, and project phases.
- Hire people with good social and communication skills, including as much local staff as possible.
- Make stakeholder engagement a collective responsibility. (See Challenge 4.3.b.)
- Review the project activities and timelines with relevant company departments to ensure early and meaningful consultation with communities is well integrated into the planning. (See Challenge 4.2.a.)
- Ensure all staff and contractors are familiar with the local culture and are adequately trained to engage constructively (e.g. avoiding practices that might be considered offensive behaviour and ensuring communities are not treated as a threat, but as partners). Consider developing cross-cultural training programmes with the help of locals in the operations area to enable company personnel to understand the culture, values and practices of local communities. Such training could also help company personnel explain the company’s culture and operations to communities and indigenous peoples. (CSBP, Flashpoint Issue 4: 7) (See Case Study: Human Rights Training in Cameroon)
- Encourage informal interactions between company staff and local communities (e.g. stop over in the village to buy local products or have tea).
Ensure the stakeholder engagement strategy is inclusive
- Prioritise your stakeholders and reflect on the appropriate level of engagement for each stakeholder group.
- Prioritise impacted stakeholder groups, and especially individuals who are vulnerable and at risk of marginalisation. The more a stakeholder group is materially affected by a component of the project, the more important it is for them to be properly informed and encouraged to participate in matters that have direct bearing on them, including proposed mitigation measures, the sharing of development benefits and opportunities, and implementation or monitoring issues.
- Consider that children are among the most vulnerable population groups and “usually less well placed to advocate for their own interests”.
- Where appropriate include in the decision-making and consultation processes indigenous groups that have been displaced from their lands, either historically or by the project, but still maintain a connection to, and interest in, the area of operations. (ICMM 2011: 44) (See Challenge 4.1.d.)
- Engage with those who oppose the project. Often their opposition may be rooted in legitimate concerns that should be taken into consideration and responded to. (PDAC-CDA: 25) (See Challenge 4.5.a.)
- Be cautious in engaging with armed groups as this “may expose the company to allegations of bribery, corruption and illegality.” (UNGC: 22) Take into account that the local community and the armed group may be inextricably linked through predatory or positive relationships of their own.
- Identify barriers to engagement such as social and cultural norms, socio-economic constraints, logistical constraints, legacy issues, violence and opposition. (OECD 2015: 24-27)
- Arrange meetings at times and locations where the people who need to be there can come and “ensure that everyone in the community is informed about meeting times and content”. (GIR: 126) To the extent possible, use multiple venues for engagement and make sure that some venues are public.
- Where necessary, make special arrangements to enable the participation of vulnerable and marginalised groups and people living in remote or isolated areas (OECD 2015: 34), such as having separate meetings with the different vulnerable groups or providing transportation to the meeting venue.
- Take into account that, “in some instances, affected stakeholders may be unwilling or unable to engage directly with businesses (…) due to the presence of active conflict, intimidation or lack of trust.” Where direct engagement with stakeholders is not possible or might be dangerous for them, consult credible third parties who do have access to these stakeholders to gain insights into stakeholders’ views and concerns and for advice on how to proceed. (Shift: 16)
- Communicate in plain, non-technical language; provide explanatory materials, such as brochures, theatre, videos, pictures and maps.
- Invest in community capacity-building and engage local facilitators to enable communities to engage effectively in decision-making processes.
Start stakeholder engagement as soon as company staff or contractors set foot on the ground (PDAC-CDA: 8)
- When entering a new region or community, prepare “an official letter from the company to present to stakeholders in the field stating the company’s name, names of the employees”, a contact person and number, and some basic details of the work the company will be conducting over the next days. (PDAC-CDA: 11)
- Prior to starting any activities, hold an on-site meeting with representatives of local communities, to discuss the proposed location of activities (e.g. drill holes) (ICMM 2011: 48) and to explain what is going to happen (including the possibility that exploration activities do not lead to production).
- Agree with the community on the frequency, location, objectives and forms of engagement.
- Agree on who represents the company, who represents communities and when and where the various forms of engagement take place.
- Define the goals and desired outcomes in partnership with the stakeholders in advance of the consultation process itself. (UNGC: 23)
- Ask stakeholders what level of consultation they desire: information, involvement in meetings, active contribution to planning and/or participation in monitoring activities.
- Use reputable advisors with a good knowledge of the communities’ culture, and who are respected by the communities, to support engagement.
“Successful engagement is based on some simple, practical principles that represent a blend of ethical considerations and common sense:
Respect: Be respectful in your contact and communication; how you dress, speak, and act will determine the quality of the relationship you have with community members.
Honesty: Ensure full, true and plain disclosure of information and your purpose, so as not to raise expectations.
Inclusion: Be inclusive in the process, so that all parties feel they have an opportunity to share their perspectives. Otherwise, the community will perceive that the company only speaks to those who support the project or are easy to talk to.
Transparency: Establish and maintain complete transparency in all aspects of the process, so that people trust the process that you are undertaking.
Communication: Genuinely and actively listen to community members, rather than trying to sell them on the benefits of the project.” (PDAC-CDA: 9)
- Invest time in consultations, to enable community consensus-building
- Listen carefully to concerns, including from those stakeholders that oppose a project (See Challenge 4.5.a.)
- Visit the local community regularly and ask them simple questions to learn what they expect from the company and to demonstrate interest in the community. (PDAC-CDA: 12) Arrange for visits by senior staff to local communities to demonstrate that the company is genuinely interested in building a relationship and that engagement is a senior level priority. Building relationships with stakeholders early on can be instrumental in resolving crises if they arise. (Shift: 15)
- “Be aware about what people are not talking about.” Do not avoid difficult questions or discussions, because they are probably the most vital to be had (PDAC-CDA: 11), but ensure this is done in a culturally acceptable manner.
- Address concerns before they escalate, as well as any misalignments in expectations or differing perceptions on rights. In case of unfounded concerns by communities, do not dismiss them, but rather try to understand things from their perspective and open a dialogue to explain why the concerns are truly unfounded or to find a solution based on mutual agreement and trust. (ICMM 2009: 9)
- Note that communities and companies may have a very different concept of time. Seek to understand and accommodate the community’s perspective on time.
- Where there are disagreements between or within groups, consider facilitating resolution by, for example, identifying a mutually acceptable mediator. (ICMM 2011: 44)
Take an inclusive and equitable approach to compensation and distribution of benefits
- Develop a corporate policy on compensation and distribution of benefits before starting any activities.
- Discuss compensation measures for project impacts jointly with communities and authorities.
- Identify those individuals that should be compensated for a loss caused by the project.
- Agree on collective compensation that benefits the community as a whole.
- Where possible, take a community-wide approach to distribution of benefits. Examples include educational and health trust funds, support to start up new enterprises, or technical/vocational training programmes. (GIR: 95)
- Ensure policies generate equality in opportunities and processes as well as in outcomes. For example, if a process is open to both women and men it may seem to be equal, but if women are restricted in their participation because of barriers to access, in practice equality has not been achieved.
- Ensure that contractors use the same definition as the company for ‘local’, and comply with their obligations regarding local hiring and use of local suppliers.
- Ensure financial oversight of local development funds and provide capacity-building of local people to prepare proposals and manage projects. (Swisspeace: 45)
- Ensure that individual and collective compensation and benefits from the company to communities are fair and seen to be fair. (GIR: 31) Be transparent about why certain groups (e.g. indigenous people) receive more benefits than others and what criteria are applied. (GIR: 33) Be careful, to the extent that there are differences, to ensure that the recipients do not themselves become targets for rights violations by other groups. Consider security measures in this regard if disparate payments create security risks.
Recommended Resources on Stakeholder Engagement
Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector (OECD, 2016)
This document offers practical guidance for the extractive sector in line with the provisions of the OECD Guidelines on due diligence for stakeholder engagement. This guidance is less focused on ‘how to’ execute stakeholder engagement activities and instead provides a due diligence framework to identify and address risks with regard to stakeholder engagement activities. The recommendations and good practices included are aimed at ensuring that stakeholder engagement effectively serves its function of avoiding and managing adverse impacts.
Community Development Toolkit (ICMM, 2012)
The Community Development Toolkit consists of twenty tools for all stages of the community development process – divided into relationship, planning, assessment, management, and monitoring and evaluation tools. The five relationship tools provide detailed step-by-step guidance, checklists, tables and case studies on stakeholder engagement and grievance mechanisms.
Preventing Conflict in Exploration: A Toolkit for Explorers and Developers (PDAC, CDA, and World Vision Canada, 2012)
This Toolkit is a practical five-step guide that helps extractive companies prevent conflict through constructive community engagement. The step-by-step guidance assists field staff and management in understanding how the interaction between companies and communities creates sources of risk, as well as in developing engagement approaches to mitigate and address these risks.
Getting it Right: Making Corporate-Community Relations Work (Luc Zandvliet and Mary B. Anderson -Greenleaf Publishing, 2009)
This book is one of the most comprehensive and detailed analyses of company-community relations in complex environments. Based on extensive site visits at over 25 company operations around the world, the authors gathered numerous case studies and practical examples that not only identify a large range of good (and bad) engagement practices, but also allow for a detailed insight into the varied perceptions of companies and local communities. This resource is currently not freely available and must be purchased.
Stakeholder Engagement: A Good Practice Handbook for Companies Doing Business in Emerging Markets (IFC, 2007)
This handbook provides a comprehensive overview of stakeholder engagement with local communities, government authorities and non-governmental organisations. The first part of the handbook contains key concepts and principles of stakeholder engagement and identifies good practices and tools to facilitate a successful engagement. The second part illustrates how these practices and tools can be employed at the different phases of the project cycle.
c) Companies may at times engage with community members who take advantage of their positions to capture benefits without taking into account the interests and needs of the community.
Identify legitimate representatives of the different community sub-groups
- Allow stakeholders to choose their own representatives, but consider intervening in cases where the selection of representatives is clearly biased towards a specific segment of the community (e.g. men, old people, an ethnic group, a family, etc.).
- Ensure representatives reflect the diversity of stakeholder groups (OECD 2015: 35), as well as the diversity of interests that may be present. “It is important to keep in mind that not all stakeholders in a particular group or sub-group will necessarily share the same concerns or have unified opinions or priorities.” (IFC: 13)
- “Be aware that the very act of establishing certain people as the “liaison” between the local population and the project confers upon them a certain degree of power and influence.” (IFC: 20)
Legitimate stakeholder representatives could be, but are not limited to:
- Politicians and local government officials
- Elected representatives of regional, local, and village councils
- Traditional representatives, such as village headmen or tribal leaders
- Chairmen/directors of local cooperatives
- Leaders of community-based organisations or local NGOs
- Representatives of local women’s, youth, and minority groups
- School teachers
- Religious leaders
Ensure transparency in processes for engagement with community representatives
- Monitor how representatives are selected to ensure they are chosen fairly and transparently. (GIR: 94)
- Gain a clear understanding of who must grant consent for operations to commence and for various decisions during the course of project operations under domestic and international law. Note that, even if the company is not legally required by law to obtain consent directly from local communities, seeking consent throughout a project lifecycle can nonetheless enhance the company’s social license to operate and reduce risks to the investment. Be aware also of the conditions under which consent can be given and those under which it can be withdrawn. (OECD 2015: 50) Ensure that any consent that is accepted by the company is given on a voluntary and informed basis and sought in a timely manner. (OECD: 50)
- Ensure that the information reaches all levels of the community.
- “Establish systems to ensure that representatives remain accountable to the broad community.” (GIR: 124) Agree with community representatives on a system for disseminating objectives and outcomes. (GIR: 125)
- Broaden channels of communication and do not be overly reliant on a single source for intermediation. (IFC: 22)
- Publicise the minutes of meetings and make any agreements transparent. (GIR: 94)
- Be “careful not to generate any perceptions of alliance or political alignment with a particular stakeholder, whether it is a community leader, a political party or a government agency”, as that can lead stakeholders to question the company’s objectivity or fairness. (IA-ICMM: 11)
Assess regularly the legitimacy of communities’ representatives
- Talk to local staff to identify community concerns regarding their representatives.
- Use surveys and engage informally with communities to assess “whether they feel their views are being adequately represented and to discuss how to proceed when it is believed that this is not the case.” (OECD 2015: 36)
Combine engagement with representatives with direct engagement with community members
- Follow local decision-making procedures, but, at the same time, make community involvement a condition for any agreements. (IA-ICMM: 12)
- “Engage with both formal and informal leaders”, (GIR: 124) and reach out to both men and women, youth and elders, all socioeconomic, caste, ethnic and religious groups.
- Consider also engaging with proxy representatives, i.e. “representatives that do not actually belong to a stakeholder group themselves but are in tune with the needs and wants of the group, such as civil society organisations or appointed neutral agents (…). This should only be the case where such representation is requested or authorised by the right-holders in question.” (OECD 2015: 36)
d) It may be difficult to determine an effective engagement strategy with indigenous peoples, particularly the division of responsibilities between the government and the company, to ensure that the special rights of indigenous peoples under international law are respected.
Key rights articulated in the main international instruments relating to Indigenous Peoples’ rights at the international level “include the rights of Indigenous Peoples to:
Their lands, territories and resources,
Maintenance of their cultures, including their cultural heritage, and recognition of their distinct identities, and
To be asked for their free, prior and informed consent in decisions that may affect them.”
(ICMM 2011: 8)
Ensure that indigenous people are properly identified and prioritised
- Conduct due diligence, in collaboration with local experts (e.g. anthropologists), to determine the presence of indigenous communities and their status of land ownership. (ICMM 2011: 43)
- If a group identifies as indigenous, adopt a practice to proceed as if the group has been formally recognised as indigenous. (UNGC 2013: 19)
- Institute a policy (either as a stand-alone policy or as part of a human rights policy) that commits the company to respecting indigenous peoples’ rights, in particular the right to participate in decision-making. Ensure that employees have a strong understanding of the policy. Make this commitment public and communicate it to all relevant stakeholders. (EO100: 48)
Clarify legal obligations regarding engagement with indigenous peoples
- Consult technical staff, local sources and legal expertise to clarify legal obligations, both of the company and the government, both under national and international law.
- Clarify whether consent to begin operations from the local community is legally required. Where consent is required, do not proceed with activities until it has been granted. (OECD 2015: 79) Note that, even if the company is not legally required by law to obtain consent directly from indigenous communities, seeking consent throughout a project lifecycle can nonetheless enhance the company’s social license to operate and reduce risks to the investment.
- Be aware that the customary land rights of indigenous people at times may not be recognised by national laws. Also, there may be difficulties in identifying original land owners because of legacies of conflict and displacement, so enhanced due diligence may be required to understand these complexities.
Seek to ensure that the government fulfils its responsibility regarding consultations and FPIC (See Challenge 4.2.a.)
|Generally, free prior and informed consent (FPIC) is considered to be the responsibility of governments rather than companies. Nonetheless, “the company has a responsibility to do all it can to ensure that indigenous and local people’s rights are respected.”
- Inform the government about the company's policy in relation to respecting indigenous peoples' rights and lands.
- Clarify the division of roles and responsibilities between the company and government and set out a plan for implementation of free prior and informed consent (FPIC).
- Ensure that any exploration or production contracts with the government clearly include requirements to recognize, respect and comply with the rights of indigenous peoples. (EO100: 48)
|Article 30 of the UN Declaration on the Rights of Indigenous Peoples prohibits military activities taking place on indigenous lands without consent from the indigenous peoples. If the State has violated Article 30, companies must ensure that they do not contract with the State in such a way that would mean that the company would be supporting military activities on indigenous lands. A business should not benefit from military activities that discriminate against indigenous peoples. (UNGC 2013: 72)
Ensure that the correct process of obtaining FPIC is adhered to
- Ensure indigenous peoples are informed of their land rights under national law.
- Agree with affected indigenous people on a process for FPIC that is based on good faith negotiation free of coercion, manipulation and intimidation and commit to such a process through a formal or legal agreement.
- Consult on what constitutes appropriate consent for affected indigenous peoples in accordance with their governance institutions, customary laws and practices (for example, whether this is a majority vote from the community or approval of the council of elders). Whatever measure of consent is decided, it should reflect that the project has the broad consent of the community.
- Be completely transparent about the risks and benefits of the mining project, as well as the standards that the company has in place to prevent further damage. (ICMM 2011: 57) (See Challenge 4.2.b.)
- “Recognise that consent is not a static, one-off activity” (OECD 2015: 78) but an ongoing process that needs to be responsive to community needs. Different conditions and requirements should be negotiated at each stage of the project cycle.
- Where indigenous peoples refuse to engage or to give consent, try to consult directly with them or with reliable third parties to understand the reasons and whether concerns can be accommodated or addressed. (OECD 2015: 79)
- Take into account that many indigenous communities live in isolation from broader communities and may require additional support to be able to engage fully in company processes. (OECD 2015: 76) In some cases, communities in isolation may not wish to be involved at all. In such a case, develop buffer zones to protect these indigenous groups from business operations (UNGC 2013: 23) and/or reconsider the location of operations.
Ensure that engagement with indigenous peoples is effective and appropriate (See Challenge 4.1.b.)
- Respect the local entry protocols for accessing community lands. (ICMM 2011: 18)
- Train staff to understand and demonstrate respect for indigenous culture by learning local customs and language. “The ability to speak the local language, even at a ‘courtesy’ level, will be helpful.” (OECD 2015: 76)
- When indigenous groups have been displaced from the lands where an operation is taking place, ensure they are still engaged in the decision-making and consultation processes of the company. (ICMM 2011: 44)
- Whether or not indigenous governance structures are legally recognised, take them into account in the security management of operations.
- Develop agreements with indigenous communities that increase goodwill and improve relationships, and provide a structured mechanism to facilitate dialogue and engagement.
- Ensure agreements contain mechanisms for benefit sharing between a company and indigenous communities, as well as specific grievance mechanisms for redress of any violations committed.
- Include a requirement for a regular review of the agreement.
Develop a risk and impact mitigation strategy that is adapted to the indigenous culture (See Challenge 4.4.a.)
- If indigenous groups are particularly marginalised, face discrimination, cultural ignorance, lack of a common language and/or experience high levels of poverty and social disadvantage, be aware that they may be less resilient to adverse impacts and more vulnerable to serious economic and social consequences from a project. Help to mitigate such vulnerability, for example by partnering with or funding civil society organisations, advocating against discrimination, (ICMM 2011: 93) or facilitating access to independent legal counsel for indigenous people.
- Consider supporting indigenous communities in their efforts to clarify surface rights, demarcate and title territories, (CSBP, Flashpoint Issue 4: 7) but take into account that some groups may be reluctant to rigidify territorial maps or to reveal certain sites and boundaries.
- Take into account that impacts related to land such as a lack of access or degradation of land may affect indigenous peoples more severely than other stakeholder groups if they have a special cultural connection with and rights to land, or if their livelihoods are linked to the land.
- Build a safe pathway across company sites to allow indigenous peoples to travel to their communities, if their usual pathway has been closed due to operations. (UNGC 2013: 41)
- Ensure that compensation for losses based on damage to or loss of land for indigenous people accounts for intangible value associated with sacred sites or areas of cultural significance.
- Invest in programmes that will mitigate impacts related to a loss of social networks, cultural erosion and loss of language, or if the disruption is unavoidable, consider not carrying out the project.
- Be aware of the particular social dynamics between indigenous groups and non-indigenous community groups, and work to mitigate any negative impacts on these dynamics caused by company operations.
Useful resources relating to Indigenous Peoples
Indigenous Peoples and Mining Good Practice Guide (ICMM, 2015)
This is a thorough guide addressing good practices in engagement with indigenous peoples, including the development of agreements (such as benefit sharing agreements) and the establishment of grievance mechanisms. It also includes step-by-step tools to help companies deal with the challenges of engagement, as well as case studies.
Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas (OECD, 2015)
This guide provides comprehensive and clear techniques for effective stakeholder engagement, including a section with useful guidance specifically related to engagement with indigenous peoples.
Abbi Buxton and Emma Wilson, FPIC and the Extractive Industries (IIED, 2013)
This document provides accessible and practical guidance for companies trying to understand the business case for implementing FPIC and how to actually achieve compliance with FPIC in practice. It includes useful tools and case studies.
e) Communities may mistrust the company’s grievance mechanism.
Ensure that communities understand the grievance mechanism, how to access it, and their rights and potential remedies under it
Assess the effectiveness of the existing grievance mechanism regularly and seek to understand why it is not working
EFFECTIVENESS CRITERIA FOR NON-JUDICIAL GRIEVANCE MECHANISMS
UN Guiding Principle 31: “In order to ensure their effectiveness, non-judicial grievance mechanisms, both State-based and non-State-based, should be”:
g. A source of continuous learning
h. Based on engagement and dialogue
- Review internally at regular times the type and trends of grievances.
- Track whether there are recurring complaints about the same issues – this could be a sign that the grievance mechanism is not working effectively and that the company has not altered practices to address the concern.
- Be aware that a lack of complaints might mean that the mechanism is either inaccessible or not trusted by communities, not that there is a lack of grievances. (ICMM 2012: 77)
- Involve the local workforce and community representatives in the procedures for evaluating the effectiveness of the mechanism and ensuring it is culturally appropriate.
- Consider how the mechanism addresses different kinds of grievances, ranging from easy-to-address project impacts to serious human rights abuses.
- Assess the level of satisfaction with: (a) the process for resolving complaints (including whether the complainant felt like they were treated respectfully), and (b) how adverse impacts were addressed. (OECD 2015: 51)
- Identify lessons for improving the mechanism and preventing future negative impacts.
Re-design the grievance mechanism on the basis of findings from the assessment
- Ensure the grievance mechanism reinforces and complements, rather than replaces, existing state and non-state judicial and non-judicial grievance mechanisms, as well as indigenous or other local institutions and processes. (PDAC-CDA: 13)
- Engage with local communities and/or respected third parties to ensure the grievance mechanism is adapted to the local context and meets the needs of those communities.
- If working with a third party, choose the party carefully and “select those who will be genuinely trusted locally”. (ICMM 2009: 19)
- Appoint community relations personnel who can engage effectively with complainants: qualities of empathy, maturity and fair-mindedness are important. (ICMM 2009: 9) Ensure the team includes an expert on gender and cultural issues.
- Establish a permanent company-community committee that would help in managing the relationship throughout the project cycle and resolving conflict before it becomes exacerbated. Company-community committees should incorporate measures of both the company and the community's culture and provide an atmosphere of joint learning and trust. (CSBP, Flashpoint Issue 4: 7) The structure of the committee should be decided jointly between the members.
- Ensure the grievance mechanism is accessible by consulting with communities on the most helpful access points for them. Consider establishing some or all of the following access points:
- A report abuse hotline, either via phone or SMS. (MIGA: III-16)
- A secure e-mail address that is solely accessible by a trusted monitor. (MIGA: III-16)
- Tip boxes, with clear instructions posted above them, located in areas where individuals have “unobserved access to the boxes and can drop in anonymous notes, tips or other information”. (MIGA: III-16)
- A community office where complainants can report their claims in person. Ensure that this is easily accessible to all potential claimants. If it is clear that certain members of the potentially affected community are not able to access the office, mobile teams should be sent to engage with the community and carry out the grievance process in their location.
- Develop a matrix that helps the company assess what sorts of complaints might have human rights implications.
- Where there is a risk of serious human rights abuses, consider establishing a grievance mechanism which functions as a quasi-judicial process, monitored completely independently from the company (ICMM 2009: 18). The process should include fact-finding/investigation, response, recourse to appeal and follow-up. (For further guidance on how to set this up consult recommended resources on grievance mechanisms)
- “Define a clear process for resolving complaints involving regular updates for complainants” within a defined and reasonable timeframe. (ICMM 2009: 13)
- Ensure the mechanism allows for “an immediate response to time-sensitive complaints, such as a fence being knocked down by a contractor, for example, and livestock getting out.” One way of doing this is by giving company personnel receiving grievances the authority to resolve basic complaints themselves, as well as establishing “a direct reporting line to senior managers if the issue is more serious or costly to address.” (IFC: 75)
- Ensure that the decision making criteria and process in the remediation mechanism are transparent. (OECD 2015: 60)
- Ensure the complaints system allows for anonymity and confidentiality of complainants, and protects them from the risk of retaliation. (ICMM 2009: 13) Avoid requiring detailed personal data to register a grievance, unless required by authorities. (IFC: 76)
- Ensure the parties to a grievance process cannot interfere with its fair conduct. (GPs: 34)
- Offer complainants the possibility to appeal, by referring them to a national body or court, or another respected, independent body, such as a multi-stakeholder commission or an independent panel of experts. (ICMM 2009: 19)
Publicise improvements to the grievance mechanism and promote its use
- Make the grievance mechanism “known to, and trusted by, those stakeholders for whom it is intended”. (UNIG: 65) This may be done by organising meetings with local communities, or by publishing details of the grievance mechanism in prominent places as well as on a publically accessible website.
- Provide information in a clear manner on the procedure, an indicative timeframe for each stage, clarity on the processes and types of outcome available.
- Publicly commit to a certain time frame in which all recorded complaints will be responded to (be it 48 hours, one week or 30 days) and ensure this response time is enforced. When it is not possible to respect agreed timelines, inform complainants and explain why.
- State explicitly that “all sorts of concerns can be raised through the mechanism, rather than restricting complaints to certain categories of issues.” (ICMM 2009: 8) Whilst the grievance mechanism should be capable of responding to all types of complaints, be aware that in certain cases it may be appropriate to have a sub-set of the grievance mechanism that is specialised in dealing with a specific category of complaints. (UNIG: 69) If this is the approach taken, however, ensure that such complaints are not considered in isolation of other interlinking issues.
- “Assure people that there will be neither costs nor retribution associated with lodging a grievance”, (IFC: 70) and that the use of the grievance mechanism does not impede them to access to legal or judicial remedy processes. (ICMM 2009: 8)
Make sure the newly re-designed grievance mechanism addresses and resolves grievances through engagement and dialogue at as early a stage as possible
- Keep a written record of and investigate all complaints.
- Assess any complaint in relation to its actual or potential human rights impact and ensure the grievance mechanism addresses issues before they amount to alleged human rights abuses or breaches of other standards. (UNIG: 68)
- Have information readily available on the victim referral system including hospitals, clinics and women’s shelters.
- Ensure that any security-related issues that come through the grievance mechanism are immediately flagged and escalated to senior management.
- Consult with reputable third parties with the relevant local expertise and skills, for example in mediation, arbitration and remediation processes. Relevant partners can be local and international civil society organizations, development agencies, think tanks and universities. (UNGC: 11)
- Allow for complainants to choose how their grievances are addressed. (UNGC 2013: 33) Remediation can come in different forms, including restitution, rehabilitation, compensation, community development programmes and guarantees of non-repetition. (GPs: 27)
- Cooperate with investigations conducted by other legitimate actors (e.g. by ombudsman institutions, national human rights institutions, regional human rights commissions or multi-stakeholder initiatives).
“Report back periodically to communities and other stakeholder groups as to how the company has been responding to the grievances it has received” (IFC: 76)
- In case of unfounded concerns by communities, do not dismiss them, but engage in an open dialogue to explain why the concerns are truly unfounded or to find a solution based on mutual agreement and trust. (ICMM 2009: 9)
- If the mechanism is unable to resolve a complaint, facilitate access to external experts (e.g. public defenders, legal advisors, legal NGOs, or university staff) or establish a process for resolving issues which is in the hands of a respected, independent body, such as a multi-stakeholder commission or an independent panel of experts. (ICMM 2009: 18-19)
Ensure cases are only closed after the resolution has been implemented, and following formal pre-determined procedures
Useful Resources on Grievance Mechanisms
Community Grievance Mechanisms in the Oil and Gas Industry (IPIECA, 2015)
The IPIECA Community Grievance Mechanism Guide provides highly detailed and thorough guidance on the various steps for understanding, establishing and implementing a grievance mechanism in the oil and gas industry, written from a company perspective.
Site-level Grievance and Community Response Mechanisms: A Practical Design and Implementation Guide for the Resource Development Industry (MAC, 2015)
This guide identifies common on-the-ground design and implementation challenges that companies face in trying to establish site-level grievance mechanisms, and advises on how to address these challenges. The document highlights the spectrum of response mechanisms and provides practical and granular site-level guidance, particularly for companies operating in complex environments.
Assessing the Effectiveness of Company Grievance Mechanisms (CSR Europe, 2013)
This report clarifies the meaning of the eight criteria for effective grievance mechanisms in UN Guiding Principle 31, providing examples and guidance to help companies establish grievance mechanisms that meet these criteria. It also provides companies with a methodology for assessing the effectiveness of their grievance mechanisms.
Piloting Principles for Effective Company-Stakeholder Grievance Mechanisms: A Report of Lessons Learned (Rees, 2011)
This report summarises the findings from a study conducted to test the practical applicability of principles (such as legitimacy, accessibility, etc.) that guide the establishment of effective grievance mechanisms. The report helps identify potential challenges and pitfalls that may be faced during the process of setting up an effective grievance mechanism, through analysis of piloted case studies.
Human Rights in the Mining & Metals Sector – Handling and Resolving Local Level Concerns & Grievances (ICMM, 2009)
This guidance aims to support companies resolve concerns and grievances at the operational level, understanding the handling and resolution of community complaints as a natural extension of a constructive engagement strategy. The publication focuses on the design of context-specific grievance mechanisms, exemplified through good practices, diagrams and numerous case studies.