1. ACCESS TO FINANCIAL REMEDIES BY AFFECTED COMMUNITIES
THE RESULT OF BUSINESS RELATED HUMAN RIGHTS ABUSES BY MINING CORPORATIONS IN AFRICA
Attiya Waris, Law School, University of Nairobi
11/30/2018

2. 3. Access to Financial Remedies Recommendations Conclusion
Contents
1. Introduction
Interplay Between Mining Companies and Local Communities with Respect to Abuse of Rights
3. Access to Financial Remedies
Recommendations
Conclusion
Attiya Waris, Law School, University of Nairobi
11/30/2018

3. Characteristics of a Remedy
Transparency
Accountability
Responsibility
Effective
Efficient
Fair
Just
Attiya Waris, Law School, University of Nairobi
11/30/2018

4. 1. Introduction
1.1. Understanding the Land Rights that a Community Leader can give to an Individual or Entity 1.2. Understanding the Structures of Mining Companies in Africa and Globally 1.3. Mapping the African Landscape
Attiya Waris, Law School, University of Nairobi
11/30/2018

5. THE ACTORS 1.3.1. The Individual (National or Non-National)
Occupational communities
Residential communities
Indigenous communities
The Corporation (Domestic or Foreign) 
Fully private and domestically owned by nationals of the state;
Fully private but partially foreign and partially domestically owned by nationals;
Partially private and partially government owned;
Partially private and partially publicly owned through shareholders on public stock exchanges; and
Fully public and government owned.
Attiya Waris, Law School, University of Nairobi
11/30/2018

6. 2. Mining Company Abuses and Communities
2.1. Displacement of communities from their land, destruction of forests, loss of livelihood and indigenous rights
2.2. Environmental degradation
2.3. Insufficient community consultation and compensation
Attiya Waris, Law School, University of Nairobi
11/30/2018

7. WHAT IS ACCESS TO REMEDY
adequate, effective and prompt and the compensation to be paid is to be proportional to the gravity of the violations and the harm suffered.
In referring to the UN Guiding Principles, Zerk posits that an effective remedy is not limited to financial compensation, but can potentially take a number of other substantive forms, such as:
apologies
Restitution
Rehabilitation
punitive sanctions
measures to prevent future harm such as injunctions and guarantees of non-repetition.
Attiya Waris, Law School, University of Nairobi
11/30/2018

8. The Spectrum of Access to Remedies
Site
Ethics Hotline (internal - corporate)
Grievance Mechanism (internal)
Local
Community Dialogue (non - judicial)
Community Mediation (non - judicial)
Community Court (judicial)
Traditional Methods of Dispute Resolution
National
National Mediation (non - judicial)
National Courts (judicial)
International
International Mediation, e.g. OECD NCP, World Bank, CAO (non - judicial)
Home Country Court (judicial)
International Human Rights Courts, e.g. Inter-American Commission on Human Rights (judicial)
Attiya Waris, Law School, University of Nairobi
11/30/2018

9. 3. Access to Financial Remedies
3.1. Judicial Mechanisms 3.2. Non Judicial Mechanisms 3.3. Existing Community Grievance Mechanisms 3.4. Financial Remedies
Attiya Waris, Law School, University of Nairobi
11/30/2018

10. 3.1. Judicial Remedies injunctions, damages/compensation,
revocation/cancellation of mining licences, conservatory orders, prohibitory orders
criminal sanctions.
Attiya Waris, Law School, University of Nairobi
11/30/2018

11. THE CHALLENGES
fragmented, poorly designed or incomplete legal regimes;
lack of legal development;
lack of awareness of the scope and operation of regimes; structural complexities within business enterprises;
CORRUPTION
problems in gaining access to sufficient funding for community claims; and
a lack of enforcement.
Attiya Waris, Law School, University of Nairobi
11/30/2018

12. 3.2. Non-judicial Remedies
The advent of corporate social responsibility: Chevron introduced the Global Memorandum of Understanding (GMoU) Nigeria
Setting up of complaints mechanisms: ombudsmen
Creating room for stakeholder engagements
Rise in alternative disputes resolution (ADR): national human rights institutions, labour tribunals, National Contact Points
Attiya Waris, Law School, University of Nairobi
11/30/2018

13. The Challenges Duplication Enforceability Applicability
Attiya Waris, Law School, University of Nairobi
11/30/2018

14. 3.3. Existing Community Grievance Mechanisms
information facilitation
negotiation
mediation/conciliation
arbitration
investigation
adjudication
Attiya Waris, Law School, University of Nairobi
11/30/2018

15. 3.4. Fiscal remedies Choosing the Forum Measuring the harm
Asking for restitution
Enforcing the remedy
Attiya Waris, Law School, University of Nairobi
11/30/2018

16. Measuring the Harm damage to property
loss of income and amenity as a result of environmental pollution (fish, hunting)
Threats from security
dust from trucks, daily blasts and noise pollution
labour issues
lowered standard of living
Cultural loss
Attiya Waris, Law School, University of Nairobi
11/30/2018

17. Choice of Forum Courts: Parent and its subsidiary
World Bank Inspection Panel
IFC also established a complaints mechanism: the Compliance Advisor/Ombudsman (CAO )
European Bank for Reconstruction and Development (EBRD) and the Asian Development Bank (ADB),
National Contact Points of the OECD Guidelines for Multinational Enterprises
Canadian Extractive Sector Corporate Social Responsibility Counsellor
Attiya Waris, Law School, University of Nairobi
11/30/2018

18. Asking for restitution
Parent company can be held responsible for subsidiary (Vedanta (Zambia in UK)
barriers to accessing justice in Zambia
Legal fees
Attiya Waris, Law School, University of Nairobi
11/30/2018

19. The Challenges Corruption Poor laws The parallel systems
The legally recognised system v the community system
State and business mix
Lobbies: national and international
Attiya Waris, Law School, University of Nairobi
11/30/2018

20. 4. Recommendations 4.1. African states Ought to
Harmonise their policies and regulatory frameworks with respect to financial remedies.
Develop monitoring mechanisms and administrative systems to assess financial remedies
Foster a transparent and accountable mining sector where a database is created that shows the compensation packages paid to communities so as to establish a precedent.
Develop a mining regime that provides for consultation with stakeholders in the process of considering applications for mineral rights and provide local communities a role in the management of mineral resources.
Provide pro bono legal services for indigent communities affected by the business related human rights violations of corporations to seek for financial remedies as well as an office to report complaints that must be actively investigated.
Compensation agreements must not only be in English but translated in a language that affected communities understand.
Make customary land rights equal in weight and stature to "formal", certified land
Attiya Waris, Law School, University of Nairobi
11/30/2018

21. 4. Recommendations 4.2. Corporations Ought to
Make a litigation fund available to the local community held in trust in case of criminal or unethical behaviour where the community needs to seek legal redress.
Make a large lump sum deposit in trust before it is allowed to operate to ensure that compensation is available in case of criminal or unethical behaviour.
4.3. Communities Ought to
Be educated on the process of land rights negotiation.
Ensure agreements are in writing and compensation documented.
Ensure all government–MNE contracts are public and that the community is made aware of these contracts before negotiations commence.
Attiya Waris, Law School, University of Nairobi
11/30/2018

22. Changes the Laws Country by country reporting of corporate records
Beneficial ownership of corporations
Freedom of information laws
Ending tax havens
Treaty on business and human rights
Attiya Waris, Law School, University of Nairobi
11/30/2018

23. 5. Conclusion: What Should We do to Improve Access to Remedy
The characteristic of the remedy: fair, just, efficient, effective, accountable, transparent, responsible
Advocacy
Campaigning
Research
Any Other Issues
Attiya Waris, Law School, University of Nairobi
11/30/2018

24. Weebale. Murakoze Chane. Asante. Wazviita Ngiyabonga. Shukran. Merci
Weebale! Murakoze Chane! Asante! Wazviita Ngiyabonga! Shukran! Merci! E dupe! Thank you! Obrigado!
Attiya Waris, Law School, University of Nairobi
11/30/2018