Good Practices

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 sites, but also all related facilities and transport routes.
• Use existing maps to understand which areas are important for communities, where people live, what their access routes are and which natural resources they use (such as wells, water sources and pastures). Consider using geographic information system mapping.
• Conduct a stakeholder mapping and analysis exercise in the impact areas (see 4.1.b., human rights due diligence).

Practical Tools

• Human Rights Impact Assessment Guidance and Toolbox, Phase 1: Planning and Scoping (Danish Institute for Human Rights 2020)

Before commencing new projects, conduct a baseline assessment or any other type of assessment that provides an understanding of the existing conditions in the impact areas (see human rights due diligence).

• Identify pre-existing issues, such as historical inequality, legacy issues from previous operations, the existing human rights situation, social tensions (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 local communities and the industry, in particular the other company.
• Start stakeholder engagement as soon as company staff or contractors set foot on the ground. Engage with the host community to identify pre-existing issues (see 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, indigenous peoples, human rights defenders and other under-represented groups) to gain insights into the local political context and power structures, the existing social order, relationships between social groups and other relevant issues.
• Use a variety of sources to conduct the assessment, such as: independent third-party risk assessments and conflict analyses (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 created by the company, local government and/or other businesses in the same locality. Use public sources, including media outlets and NGO reports.
• Collect baseline data that is disaggregated by sex, age, ethnicity, religion, socio-economic status and other categories. Disaggregating data allows assessors to systematically analyse how different groups might be differently impacted by business operations (e.g. whether some groups will disproportionately benefit while others will disproportionately bear negative impacts).
• Consider hiring experienced consultants who are familiar with international social assessment standards and/or anthropologists with knowledge of local indigenous groups to help with the assessment.⁴

Conduct a comprehensive human rights risk assessment and update it regularly (see human rights due diligence).

• Assess not only risks to the business, but also risks to local communities resulting from the company’s presence and operations. At minimum, analyse the following potential sources of heightened risk: Human Rights Due Diligence in High Risk Circumstances: Practical Strategies for Business, p. 5 (Shift 2015)
  • The broader operational context, including factors such as conflict, potential for violence, corruption and weak governance.  According to the Voluntary Principles on Security and Human Rights, assessments should also evaluate the State’s law enforcement capacity and the justice system’s ‘capacity to hold accountable those responsible for human rights abuses and […] violations of international humanitarian law’.
  • 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.
  • Business activities, including activities commonly associated with human rights impacts, such as land acquisition and use, resettlement and extensive water usage.
  • The presence of vulnerable groups.
• In situations of armed conflict, conduct a conflict analysis as part of the risk assessment (see 2.1.b.)
  • Analyse the implications of business operations on the dynamics of conflict, since this is key for identifying potentially significant risks of criminal and civil liability for the company, as well as risks of complicity in violations of international humanitarian law.⁵
  • 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 situations of elevated political tensions, 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 in order to manage these risks.
• Assess and evaluate the likelihood and potential consequences of risk scenarios that pose the greatest harm to the operation and the local community.
• 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 (see human rights due diligence).

• Assess all actual and potential environmental and social impacts, considering all internationally recognised human rights norms, standards and expert bodies’ recommendations.
• Assess cumulative impacts. Cumulative impacts are the incremental, combined impacts from multiple projects or activities that are located in the same region or that affect the same resources. Assessment should not only focus on the impact of the business’ operations alone, but take into account the accumulation of projects from other companies in the context.
• Seek to understand the concerns of stakeholders by consulting them directly, both within and outside of the formally defined area of the project’s impacts. In situations where consultation is not possible, consider other alternatives, such as engaging with credible, independent experts, including civil society groups and human rights defenders.
• Ensure all relevant company departments (e.g. security, community relations, operations, human resources, contracts) assist in identifying the scope of their activities and in understanding how they interact with and impact the community (see 4.3.b.).
• In some cases, the human rights risk assessment and the impact assessment could be undertaken simultaneously by the company, but it is important to distinguish between the potential risks and the more definite impacts.

Practical Tools

• Introduction to Human Rights Impact Assessment (Danish Institute for Human Rights 2020)
• Assessing Human Rights Risks and Impacts (Global Compact Network Germany 2016)
• Voluntary Principles on Security and Human Rights: Implementation Guidance Tools, module 2 and annex E (International Council on Mining and Metals, International Committee of the Red Cross, International Finance Corporation and IPIECA 2011)
• Human Rights Due Diligence in High Risk Circumstances (Shift 2015)
• Preventing Conflict in Exploration Toolkit (CDA 2016)
• Conflict Prevention Tool (Queens University, Anglo Gold Ashanti, International Committee of the Red Cross and DCAF 2021)
• Human Rights Impact Assessment Guidance and Toolbox: Stakeholder Engagement Toolbox (Danish Institute for Human Rights 2020)
• Due Diligence Guidance for Meaningful Stakeholder Engagement (OECD 2017)
• Five-Step Approach to Stakeholder Engagement (BSR 2019)
• Human Rights Due Diligence in Conflict Affected Settings: Guidance for Extractives Industries
• Community-based human rights impact assessments: Practical lessons
• A Guide to Gender Impact Assessment for the Extractive Industries
• NomoGaia HRDD tools
• Getting it Right
• Participation and Social Impact Assessment: Tools and Techniques
• Respecting the rights of indigenous peoples: a due diligence checklist for companies

Key Resources to Assess the Operational Context:

• Human Rights and Business Country Guides (Danish Institute for Human Rights)
• Country Database (Amnesty International)
• Reports and Primers on Business and Human Rights Topics (BSR)
• Universal Human Rights Index (UN Office of the High Commissioner for Human Rights)
• Freedom in the World (Freedom House)
• Human Rights Watch World Report (Human Rights Watch) 
• Understand Risk (Responsible Sourcing Tool)

Impact assessments should consider the following aspects:

Inclusiveness:

• Collect information about the potential impact of a project on communities. Consult with a variety of stakeholders, including: women; men; indigenous peoples; migrants and refugees; individuals from different socio-economic backgrounds and castes; members of different racial and ethnic groups; individuals from different religions; and community organisations.
• 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 actual and potential impacts on children from adults who have close contact with children or expertise in children’s rights.⁷
• Arrange separate meetings for the women of the community, conducted by female members of the assessment team.

Methodology:

• 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.
• Publicly report results of the impact assessment, if this has been mutually agreed upon with the community.

Content:

• 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/or increased socio-political tensions, strife or conflict. Evaluate impacts on all internationally recognised human rights.  
• Record and follow up on all concerns voiced by community members.

Legitimacy:

• Ensure that the assessment team is familiar with the local setting and make sure that the team generates trust and confidence among affected communities.
• Work in partnership with reputable third parties that know the history and relations of local communities. As explained by the UN Global Compact and Principles for Responsible Investment, ‘Relevant partners can be local and international civil society organizations, development agencies, or think tanks and universities’.

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 4.4.a.). Preventing and mitigating risks and impacts is an important component of the human rights due diligence process.

UN Guiding Principles on Business and Human Rights, no.19 and OECD Due Diligence Guidance on Responsible Business Conduct (OECD 2018)

Develop effective policies and mechanisms for identifying and settling disagreements and grievances (see 4.1.e.).

Follow up on commitments made by the company and update stakeholders regularly on the status of implementation. Clearly communicate how impacts are addressed (see cross-cutting).

UN Guiding Principles on Business and Human Rights, no. 21 and  OECD Due Diligence Guidance for Responsible Business Conduct (OECD 2018)

• Make sure that the community understands who in the company is empowered to make commitments to the community on behalf of the company.
• Keep a registry of commitments made by the company and update it regularly. Share this registry with concerned stakeholders in a manner that is accessible and understandable to all. Ensure that the registry includes:
  • Records of final agreements reached with the communities, ensuring these are verified and validated with those present during the negotiations.
  • Timelines for implementation, the responsible team or person and some detail on the agreed methods of implementation.
  • Current implementation status.
  • Record of ongoing negotiations and issues for which agreement has not been reached yet, as well as implications for the project planning.
• Provide an opportunity for stakeholders to express their satisfaction or dissatisfaction with the implementation of commitments.
• 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.

Practical Tools

• Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector (OECD 2017)

Establish a programme to measure stakeholders’ perceptions of the company’s performance (see human rights due diligence).

UN Guiding Principles on Business and Human Rights, no. 20 and OECD Due Diligence Guidance for Responsible Business Conduct (OECD 2018)

• Track changes in stakeholder relationships and monitor stakeholder perceptions regarding the company, as well as the project. Use an annual or semi-annual, independently administered ‘perception’ survey 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 to improve communications and get relationships back on track, where necessary.
• Develop indicators that are measurable and gender-sensitive, including both positive and negative indicators, as well as 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 used or not trusted).
• Consider establishing a participatory or third-party tracking mechanism. According to the International Finance Corporation, ‘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.’ This includes participation in monitoring environmental and social performance.
• 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.

Practical Tools

• UN Guiding Principles Reporting Framework (Shift and Mazars 2015)

Good Practices

Before commencing new projects, conduct a baseline assessment and an impact assessment (see 4.1.a., human rights due diligence).

Conduct a stakeholder mapping exercise in the areas where the project will have impacts.

• Determine the stakeholders both directly and indirectly affected by the project, as well as those with the power to affect operations.
  • Ensure that all groups in vulnerable situations(e.g. women, youth, elders, migrants, indigenous peoples), have been properly identified and understood.
  • Remember that membership in certain stakeholder groups, such as indigenous peoples, may be defined legally or through regulatory requirements (see 4.1.d.).
  • Define stakeholders broadly. Communities that lie outside of the designated project area may still experience impacts arising from the project. (As an example, communities a significant distance downstream from a project may face impacts related to water, environment, livelihood, etc.) These communities should be included in stakeholder engagement and in the impact assessment.
• Consider pre-existing relationships within and between stakeholder groups and identify possible sources of conflicts between the stakeholders.
• Ensure confidentiality of stakeholders and anonymity, especially in conflict-affected regions where risks of reprisals are higher. Develop and maintain a confidential stakeholder database. Ideally, it should contain:
  • Identification of the most vulnerable groups, differentiated by age, sex and other distinguishing characteristics.
  • Details of their key needs, positions, representatives and interests.
  • Details of any consultations held, including location, participants and topics discussed.
  • Any commitments made by the company, including both those outstanding and those already delivered. 
  • A record of specific grievances lodged by each stakeholder group and the status of their resolution. 
• Review and update the stakeholder map regularly, and keep track of changes in relevant stakeholders and their interests.

Develop a stakeholder engagement strategy.

• Develop internal guidance and ‘talking points’ for community engagement 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 who speak the local languages, including as many local staff as possible.  Ensure that different stakeholder groups are included, such as different ethnic or religious groups, those from different sides of the conflict (if applicable) and different demographic groups (e.g. women).
• Make stakeholder engagement a collective responsibility (see 4.3.b.).
  • Review the project activities and timelines with relevant company departments to ensure that early and meaningful consultation with communities is well-integrated into project planning (see 4.2.a.).
  • Ensure all staff and contractors are familiar with the local culture and are adequately trained to engage constructively (e.g. by 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.
  • Encourage informal interactions between company staff and local communities (e.g. when in transit, stop in the village to buy local products or have tea).

Practical Tools

Ensure the stakeholder engagement strategy is inclusive.

• Prioritise stakeholders and reflect on the appropriate level of engagement for each stakeholder group.

Prioritise impacted stakeholder groups, 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 and monitoring.

Consider that children are among the most vulnerable population groups and usually are not able to advocate for their own interests.

Practical Tools

When appropriate, include indigenous groups that have been displaced from their lands, either historically or by the project, in decision-making and consultation processes. This is especially important if they still maintain a connection to, and interest in, the area of operations (see 4.1.d. and indigenous peoples and free, prior and informed consent).

Engage with those who oppose the project. Often, their opposition is rooted in legitimate concerns that should be taken into consideration and responded to. Engage with human rights defenders (see 4.5.a.).

Be cautious in engaging with non-State armed groups. According to the UN Global Compact, such engagement ‘may expose the company to allegations of bribery, corruption and illegality’.

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—and consider ways to address or reduce these barriers.

Arrange community meetings at times and locations where the people who need to be there can participate, and ensure that everyone in the community is informed about meeting times and agendas. To the greatest extent possible, use multiple venues for engagement and make sure that some venues are public.

Make special arrangements to enable the participation of vulnerable and marginalised groups, as well as persons with disabilities and people living in remote or isolated areas. Make special arrangements to ensure meetings can be confidential and non-attributive or organize separate meetings for certain groups who may need protection from reprisals. Consider having separate meetings with different vulnerable groups or providing transportation to the meeting venue.

Take into account that in some cultures, women may require a specific venue or interlocutor in order to be able to participate in meetings (e.g. a women-only venue with meetings facilitated, organised or attended by a trusted third party). Women may also require support with childcare arrangements so that they can participate in meetings.

As explained by Shift, 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 to ask for advice on how to proceed.

Communicate in plain, non-technical and jargon-free language; provide explanatory materials, such as brochures, theatre representations, 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.

• When entering a new region or community, prepare an official letter from the company to present to host community members 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 coming period.
• Prior to starting any activities, hold an on-site meeting with representatives of host communities to discuss the proposed location of activities and to discuss what is going to happen (for example, 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 will take place. Be mindful that the representatives who are nominated should not be the only persons the company engages with. Certain groups may not feel represented by the leading voices (see 4.1.c.).
  • Define the goals and desired outcomes in partnership with the stakeholders in advance of the consultation process itself.
  • Ask stakeholders what level of consultation they desire (e.g. information, involvement in meetings, active contribution to planning and/or participation in monitoring activities).
• To support engagement, use reputable advisors with a good knowledge of the communities’ culture and who are respected by the communities.

Invest time in consultations to enable community consensus-building.

• Listen carefully to concerns, including from those stakeholders that oppose a project (see 4.5.a.).
  • Visit the local community regularly and ask questions to learn what they expect from the company and to demonstrate interest in the community. Arrange for senior staff to visit 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/when they arise.
  • Be aware of what people are not talking about. Difficult questions or discussions could be most vital, but it is important to ensure they are dealt with in a culturally acceptable manner. Take measures to protect confidentiality, to the greatest extent possible.
• Address concerns before they escalate, as well as any misalignments in expectations or differing perceptions on rights. Do not dismiss any concerns by communities, but rather try to understand things from their perspective, and open dialogue to discuss why the concerns may be unfounded or to find a solution based on mutual agreement and trust.
• Note that communities and companies may have very different concepts 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. Consider any existing and/or culturally appropriate dispute resolution mechanisms.

Take an inclusive and equitable approach to compensation and distribution of benefits. Compensation issues often drive site-level conflict and thus security risks.

• 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 the 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 the distribution of benefits such as jobs, contracts and social investments.
  • 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.11 Take into account that women and men may have different views on what ‘fair compensation’ means and ensure that the policies address the population equally.
  • Ensure that contractors use the same definition as the company for ‘local’ and comply with their obligations regarding local hiring and the use of local suppliers. However, be aware of biases in defining which communities are considered ‘local’. Avoid excluding groups or communities and exacerbating or creating social tensions. Seek to identify any communities that may have been overlooked (e.g. camps of refugees or internally displaced persons).
  • Ensure financial oversight of local development funds and provide capacity-building to help local people prepare proposals and manage projects.
• Ensure that individual and collective compensation and benefits from the company to communities are distributed in ways that are fair and seen to be fair. Be transparent about why certain groups (e.g. indigenous people) receive more benefits than others and what criteria are applied. To the extent that there are differences, carefully ensure that the recipients of benefits do not themselves become targets for rights violations by other groups. Consider security measures in this regard if disparate payments create security risks.

Key Resources

• Due Diligence Guidance for Meaningful Stakeholder Engagement (OECD 2017)
• Getting It Right: Making Corporate-Community Relations Work, p. 126 (Luc Zandvliet and Mary B Anderson, Greenleaf Publishing 2009)

Practical Tools

• Community Development Toolkit (International Council on Mining and Metals 2012)
• Human Rights Due Diligence in Conflict Affected Settings: Guidance for Extractives Industries (International Alert 2018)
• Preventing Conflict in Exploration Toolkit (CDA 2016)
• Human Rights Impact Assessment Guidance and Toolbox: Stakeholder Engagement (Danish Institute for Human Rights 2020) 
• Community-Based Human Rights Impact Assessments: Practical Lessons (Oxfam 2010)
• A Guide to Gender Impact Assessment for the Extractive Industries (Oxfam Australia and Australian Aid 2017)
• NomoGaia Human Rights Due Diligence Tools (NomoGaia)
• Participation and Social Impact Assessment: Tools and Techniques (Jennifer Rietbergen-McCracken and Deepa Naraya, International Bank for Reconstruction and Development 1998)
• Respecting the Rights of Indigenous Peoples: A Due Diligence Checklist for Companies (Danish Institute for Human Rights 2019)

Good Practices

Identify legitimate representatives of 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, a particular ethnic group or clan, a specific political party, etc.).
• Ensure representatives reflect the population: gender, minorities, diversity of interests, etc. Keep in mind that not all stakeholders in a particular group or sub-group necessarily share the same concerns, opinions or priorities.
• 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.

Ensure transparency in processes for engagement with community representatives.

• Monitor how representatives are selected to ensure they are chosen fairly and transparently.
• Gain a clear understanding of who in the community must grant consent to ensure company operations have legitimacy. This will also be the point of contact for approving various decisions during the course of project operations. Note that, even if the company is not legally required by law to obtain consent directly from local communities, seeking consent from community leaders throughout a project’s 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. Ensure that any consent that is accepted by the company is given on a voluntary and informed basis and sought in a timely manner.
• Ensure that the information reaches all levels of the community.
  • Establish mechanisms for ensuring chosen representatives remain accessible and accountable to the broad community.  This might include, for instance, instituting mechanisms against bribery and corruption with the community representatives.
  • Agree with community representatives on a system for disseminating objectives and outcomes.
  • Broaden channels of communication and avoid over-reliance on a single source for mediation.
  • Publicise the minutes of meetings and make any agreements transparent.
• Avoid perceptions of alliance or political alignment with a particular stakeholder—whether it is a community leader, a political party or a government agency—as this can lead stakeholders to question the company’s objectivity or fairness.

Regularly assess the legitimacy of community 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. When they do not, engage them directly to discuss how to proceed.
• Consider including the grievance mechanism as a place where community members can raise concerns about the representatives that dialogue with the company.

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.
• Engage with both formal and informal leaders.  Reach out to: men and women; youth and elders; people of all socio-economic backgrounds, castes, ethnicities and religious groups; and human rights defenders.
• Engage with civil society organisations and other actors that may represent the needs of different stakeholder groups.

Good Practices

Ensure that indigenous peoples are properly identified and prioritised for engagement on security arrangements.

• Conduct due diligence, in collaboration with local experts (e.g. indigenous peoples and anthropologists), to determine the presence of indigenous communities. Also assess their relationship to the land and its ownership, important cultural and religious locations and traditions, and any current or recent interactions with security providers (public or private).
• If a group self- identifies as indigenous, adopt a practice to proceed as if the group has been formally recognised as indigenous.
• Institute a policy (either as a stand-alone policy or as part of a human rights policy) that commits the company and its security providers to respect 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.

Key Resources

• Extractive Industries and Indigenous Peoples (UN Special Rapporteur on the Rights of Indigenous Peoples 2013)
• Attacks and Criminalisation of Indigenous Human Rights Defenders (UN Special Rapporteur on the Rights of Indigenous Peoples 2018)
• UN Declaration on the Rights of Indigenous Peoples (UN 2007)
• Indigenous and Tribal Peoples Convention (International Labour Organization 1989)

Practical Tools

• Indigenous Peoples Mapping Tool (IPIECA 2015)
• Respecting the Rights of Indigenous Peoples: A Due Diligence Checklist for Companies (Danish Institute for Human Rights 2019)
• Indigenous Navigator Tools Database (Danish Institute for Human Rights 2020)

Examples

Charter of Principles and Guidelines Regarding Indigenous and Tribal Peoples (TotalEnergies 2013)

Clarify legal obligations regarding engagement with indigenous peoples.

• Consult technical staff, local sources and legal expertise to clarify legal obligations of the company and the government, both under national and international law.
• Clarify whether consent from the local community is legally required. Where consent is required, do not proceed with activities until it has been granted.  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 may not always be recognised by national laws. Also, there may be difficulties in identifying original landowners because of legacies of conflict and displacement, so enhanced due diligence may be required to understand these complexities and whether the company is permitted to operate and to contract security providers on the land.

Key Resources

• International Instruments on Free, Prior and Informed Consent (IPIECA 2015)

Seek to ensure that the government fulfils its responsibility regarding consultations and free, prior and informed consent (see 4.2.a.).

• 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.
• Ensure that any contracts with the government clearly include requirements to recognize, respect and comply with the rights of indigenous peoples.  (Also see leverage.)

Ensure that the correct process of obtaining free, prior and informed consent is adhered to.

• Ensure indigenous peoples are informed of their land rights under national law.15
• Agree with affected indigenous people on a process for free, prior and informed consent that is based on good faith negotiation free of coercion, manipulation and intimidation. Commit to such a process through a formal or legal agreement.16
• 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 operational activities, as well as the standards that the company has in place to prevent further damage (see 4.2.b.). 
• As noted by the OECD’s due diligence guidance, ‘Recognise that consent is not a static, one-off activity’.  Instead, it is 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.
• 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.  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, considering any impacts that may affect this buffer zone (e.g. downstream impacts on water resources).  Ensure that security providers do not violate these arrangements.

Ensure that engagement with indigenous peoples is effective and appropriate (see 4.1.b.).

• Respect the local entry protocols for accessing community lands and ensure all contractors and security providers do so as well.
• 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 only a ‘courtesy’ level, is helpful.
• 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.
• Whether or not indigenous governance structures are legally recognised, take them into account in the management of security operations.
• Develop agreements with indigenous communities that increase goodwill and improve relationships. Provide a structured mechanism to facilitate dialogue and engagement.
  • Ensure agreements contain specific grievance mechanisms for redress of any violations or complaints.
  • Include a requirement for a regular review of the agreement.

Practical Tools

• Due Diligence Guidance for Meaningful Stakeholder Engagement (OECD 2017)
• Good Practice Guide Indigenous Peoples and Mining (International Council on Mining and Metals 2015)

Develop a risk and impact mitigation strategy that is adapted to the indigenous culture (see 4.4.a.).

• Be aware that indigenous groups may be less resilient to adverse impacts and more vulnerable to serious economic and social consequences from a project and/or security arrangements. For example, indigenous peoples may be marginalised through discrimination, broad cultural ignorance of indigenous issues and viewpoints, overrepresentation in criminal justice systems, brutality from security providers and/or high levels of poverty and social disadvantage. Consider these vulnerabilities and ways to address them in assessments and mitigation plans. Help to mitigate such vulnerability, for example, by partnering with or funding civil society organisations, advocating against discrimination and/or facilitating access to independent legal counsel for indigenous people. 
• Consider supporting indigenous communities in their efforts to clarify surface rights, as well as demarcate and title territories. However, 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. This is especially true if they have a special cultural connection with and rights to land, or if their livelihoods or important cultural practices 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. Ensure that security providers are aware of and trained on the location of this area. 
  • Ensure that compensation for losses accounts for intangible value associated with sacred sites or areas of cultural significance.
• Invest in programmes that mitigate impacts related to a loss of social networks, cultural erosion and loss of language. 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.
• Be aware of and address the particular needs and vulnerabilities of indigenous women who may experience increased negative impacts and barriers for engaging on their interests.

Key Resources

• IRMA Standard for Responsible Mining, chapter 2.2 (Initiative for Responsible Mining Assurance 2018)
• Due Diligence Guidance for Meaningful Stakeholder Engagement (OECD 2017)
• International Instruments on Free, Prior and Informed Consent (IPIECA 2017)
• Indigenous Peoples Mapping Tool (IPIECA 2015)
• Good Practice Guide: Indigenous Peoples and Mining (International Council on Mining and Metals 2015)
• Chinese Due Diligence Guidelines for Responsible Minerals Supply Chains (OECD and the China Chamber of Commerce of Metals, Minerals and Chemicals Importers and Exporters 2015)

Good Practices

Ensure that communities understand the company’s grievance mechanisms, how to access these mechanisms and their rights and potential remedies.

Assess the effectiveness of any existing grievance mechanisms regularly and seek to understand what aspects can be improved.

• Internally review the type and trends of grievances on a regular basis.
  • Track whether there are recurring complaints about the same issues; this could be a sign that grievance mechanisms are 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 mechanisms are either inaccessible or not trusted by communities. It does not necessarily indicate that the community has no grievances.
• Involve the local workforce and community representatives in the procedures for evaluating the effectiveness of grievance mechanisms and ensuring they are culturally appropriate.
  • Consider how each mechanism addresses different kinds of grievances, ranging from easy- to-address project impacts to serious and complex human rights abuses. Note that serious human rights abuses may be more suitably referred to a judicial system, if available.
  • Assess the level of satisfaction with the process for resolving complaints (including whether the complainant felt like they were treated respectfully), as well as how adverse impacts were addressed.
  • Identify lessons for improving each mechanism and preventing future negative impacts.20

(Re)design grievance mechanisms on the basis of findings from the assessment.

• Ensure grievance mechanisms reinforce and complement existing State and non-State judicial and non-judicial grievance mechanisms, as well as indigenous or other local institutions and processes. It should not replace or supplant those mechanisms.
• Engage with local communities and/or respected third parties to ensure grievance mechanisms are adapted to the local context and meets the needs of those communities. If working with a third party, ensure that the party is trusted locally.
• Appoint community relations personnel who can engage effectively with complainants; qualities of empathy, maturity and fair-mindedness are important.  Ensure the team includes at least one expert on gender and cultural issues who speaks the local languages.
• Ensure the grievance mechanisms are accessible by consulting with communities on the best access points for them. Consider establishing several of the following access points:
  • A ‘report abuse’ hotline, accessible via phone, SMS or social networks. Above all, ensure confidentiality and data protection and use encrypted platforms.
  • A secure e-mail address that is solely accessible by a trusted monitor.
  • Tip boxes located in areas where individuals have unobserved access and can drop in anonymous notes, tips or other information. These should have clear instructions posted above them.
  • ‘Persons of trust’ selected by employees that can bring concerns to the company or private security provider management on the behalf of employees. This can also be done via existing mechanisms, such as unions and/or employee associations, if applicable.
  • 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.
• Consider that accessibility also relates to language, literacy and social position. Ensure that the procedure is available in local languages, is explained orally by community officers if literacy is an issue, and that access for persons with limited mobility is considered (e.g. women who cannot leave their home alone).
• Based on information from the initial assessment, clarify how complaints will be categorized as serious or less serious, as well as who will deal with each category of complaint. In some cases, the seriousness will dictate that a complaint needs to be escalated to higher management or referred to another judicial or non-judicial institution. Note that the UN Guiding Principles on Business and Human Rights classify severity based on the scale, scope and irremediability of impacts.
• Develop a matrix that helps the company assess what sorts of complaints might have human rights implications, and ensure that the assessments of these complaints and their severity do not happen arbitrarily.²¹
• For situations involving risks of serious human rights abuses, establish an escalation and referencing process and ensure that the proper national authorities and processes are respected.
• Define a clear process for resolving complaints on a pre-determined timeline, with regular updates for complainants.
  • Ensure grievance mechanisms allow for an immediate response to time-sensitive complaints (e.g. a fence being knocked down by a contractor, allowing livestock to escape). One way of doing this is by giving company personnel receiving grievances the authority to resolve basic complaints themselves. The International Finance Corporation also suggests establishing ‘a direct reporting line to senior managers if the issue is more serious or costly to address’.
  • Ensure that the complaints process, including its decision-making criteria, are transparent.
• Ensure the complaints system allows for anonymity and confidentiality of complainants and protects them from the risk of retaliation.  Avoid requiring detailed personal data to register a grievance.
• Ensure the parties to a grievance process cannot interfere with its fair resolution.
• Offer complainants the possibility to appeal, and specify where appeals can be brought (e.g. a national body or court, an independent panel of experts or another respected, independent body).

Publicise the grievance mechanism and promote its use.

• The UN’s interpretive guide to the Guiding Principles on Business and Human Rights emphasise that the company should make the grievance mechanism ‘known to, and trusted by, those stakeholders for whom it is intended’.  This may be done by organising meetings with local communities, publishing details of the grievance mechanism in prominent places and/or posting information on a publicly accessible website.
• Provide clear information on the procedure, timeframe for each stage and types of outcome possible.
• Publicly commit to a certain time frame in which all recorded complaints will be responded to (e.g. 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.
• As recommended by the International Council on Mining and Metals, explicitly state that ‘all sorts of concerns can be raised through the mechanism, rather than restricting complaints to certain categories of issues’.  Whilst grievance mechanisms should be capable of responding to all types of complaints, ensure an escalation and referencing procedure, as mentioned above, for particularly serious issues.
• The International Finance Corporation emphasises that companies should ‘assure people that there will be neither costs nor retribution associated with lodging a grievance’.  Explain that the use of the grievance mechanism does not impede people to access to legal or judicial remedy processes and ensure that no company processes impede this either.

Make sure grievance mechanisms address and resolve 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 each grievance mechanism addresses issues before they amount to alleged human rights abuses or breaches of other standards.
  • Have information readily available on systems to refer victims to, 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 that have relevant local expertise and skills (mediation, arbitration and remediation processes). Relevant partners may include local and international civil society organizations, development agencies, think tanks and universities.
• Allow complainants to choose how their grievances are addressed.  Remediation can come in different forms, including restitution, rehabilitation, compensation, community development programmes and guarantees of non-repetition.
• 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 to discuss how the company has responded to the grievances it has received.

Stakeholder Engagement: A Good Practice Handbook for Companies Doing Business in Emerging Markets (International Finance Corporation 2007)

• In cases 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. Having objective third parties, outside experts and/or community leaders involved may help build trust in these responses. These sources should be trusted and credible for the community.
• 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, ombudsperson or an independent panel of experts.

Ensure cases are only closed after the resolution has been implemented and following formal, pre-determined procedures. Provide for the possibility of appeal.

Evaluate if grievance procedures generate an effective remedy, according to international criteria.

Key Resources

• Improving Accountability and Access to Remedy for Victims of Business-Related Human Rights Abuse through Non-State-Based Grievance Mechanisms (UN Office of the High Commissioner for Human Rights 2020)
• Access to Effective Remedies Under the Guiding Principles on Business and Human Rights: Implementing the United Nations Protect, Respect and Remedy Framework (UN Office of the High Commissioner for Human Rights 2017)

Practical Tools

• Handling and Resolving Local-level Concerns and Grievances (International Council on Mining and Metals 2019)
• Developing and Operating Fair and Accessible Company Grievance Mechanisms that Offer Effective Remedies (International Code of Conduct Association 2018)
• Community Grievance Mechanisms in the Oil and Gas Industry (IPIECA 2015)
• Site-Level Grievance Guide (Mining Association Canada 2015)