THE PORGERA JOINT VENTURE
Remedy Framework
December 1, 2014
The Porgera Joint Venture
OLGETA MERI IGAT RAITS
“All women have rights”
ii
Content
Introduction
Development of the Framework
Consultation process
An Independent, Fair and Accessible Process Governance
Claims Process
Alignment with UN Guiding Principles on
Business and Human Rights
UNGP 31
UNGP 29
1
2
4
5
5
5
Conclusion
9
9
11
12
13
13
13
15
Appendix A: Opinion of the UN Office of the High Commissioner
for Human Rights on the Porgera Remedy Framework
17
Appendix B: Letter from Human Rights Watch to
UN High Commissioner for Human Rights
31
Appendix C: Letter from Ms. Ume Wainetti to
UN High Commissioner for Human Rights
38
A Summary of Outcomes to Date
Individual Remediation Package Components
a) Individual Remediation Package Valuations
b) Individual Remediation Package Components
Appendix D: Letter from Dame Carol Kidu to
UN High Commissioner for Human Rights
Appendix E: BSR’s Conclusion on Waiver Provisions Under UNGP 29
41
43
Appendix F: Third party legal review: Alignment of
Porgera Remedy Framework and UNGP 31
46
Remedy Framework
Introduction
This note provides a brief background on the design,
As discussed below, the Framework is implemented
development, and implementation to date of the Olgeta
independently of the PJV and Barrick, and includes many
Meri Framework (the Framework), a key component of
safeguards to protect the rights of claimants as their claims
the response by the Porgera Joint Venture (PJV) and Barrick
are heard. The three individuals responsible for implement-
Gold Corporation (Barrick) to allegations of violence
ing the Framework are all prominent Papua New Guineans:
against women at the Porgera Gold Mine in Papua New
(1) Ume Wainetti, the National Convenor of the PNG Family
Guinea (PNG).
and Sexual Violence Action Committee, a leading non-governmental organization (NGO) in PNG; (2) Hon. Dame Carol
It describes the rationale and objectives in developing
Kidu, a former Minister of Community Development and
the Framework, outlines the extensive consultations that
long-standing member of PNG’s National Parliament, and a
informed its development, and notes the key principles that
leader in the fight against gender discrimination and gender
govern the Framework’s operation.
based violence in the region; and (3) John Numapo, a highly
1
respected former Chief Magistrate in PNG.
The Framework was developed following an extensive
18-month consultation process with leading experts
Since its inception in October 2012, the Framework success-
around the world, in PNG, and in the Porgera region. It has
fully resolved 120 individual claims, and paid over PGK2
been designed to be a sensitive, expeditious and cultur-
million in benefits to eligible claimants. It is now nearly
ally appropriate alternative to the formal justice sector. At
complete. Although Barrick and the PJV would not claim
the heart of this work was our desire to be responsive to
that the remedy program was flawless, it was developed
victims and the terrible harms they have suffered. We be-
in good faith, and has been a committed, meaningful and
lieve the Framework design is aligned with the UN Guiding
organized response to deplorable violence, and praised by
Principles on Business and Human Rights (UNGPs), a view
the claimants who have received remedy under it. Barrick
buttressed by an opinion on the program by the Office of
and the PJV remain unwavering in their commitment to
the High Commissioner for Human Rights (UNOHCHR) and
respect the human rights of the individuals and communi-
other experts (see Appendix A, E and F).
ties affected by their operations. This commitment includes
providing access to remedy consistent with the UNGPs if
Barrick and the PJV cause, contribute, or are linked to negative human rights impacts.
1Further information is available at http://www.barrick.com/operations/australia-pacific/porgera/default.aspx#topics (Progress on Human Rights).
1
The Porgera Joint Venture
Development
of the Framework
In May 2010, Human Rights Watch (HRW) alerted Barrick
•
partnering with the Fiji Women’s Crisis Centre to
and the PJV to a series of claims alleging violence against
provide training for PNG-based practitioners in
women, including rape, in and around the Porgera mine
women’s welfare and human rights to better assist
site by employees of the PJV Asset Protection Department
women affected by violence in PNG,
(APD). In response, Barrick and the PJV initiated internal and independent inquiries, which involved extensive
•
supplementary mandatory human rights training
documentary analysis and some 700 interviews, including
for PJV security personnel to encompass sexual
interviews with the vast majority of the APD and the PJV
violence and harassment issues,
Community Affairs Department. The investigation revealed
evidence of multiple instances of potential criminal con-
2
•
enhancing all security operating procedures and
duct, including sexual assaults, by former and then-current
training modules to reflect a greater emphasis on
members of the APD.
the protection of human rights,
The PJV terminated all employees implicated in sexual as-
•
saults, including identified perpetrators and those who were
implementing a plan to increase supervision of
security personnel in the field on a 24-hour basis,
aware of abuses but did not notify appropriate personnel. Barrick and the PJV urged police to investigate, and
•
installing new digital radios featuring GPS track-
provided relevant information to the police. A PNG Special
ing in all vehicles to allow for better oversight of
Police Task Force conducted its own in-depth investigation,
security personnel,
and made several arrests; they were unable to serve convictions, however.
•
installing in-car cameras in all APD vehicles to
monitor the activities of APD personnel in and
Barrick and the PJV also instituted a wide range of changes
around vehicles,
at the PJV and at other operations around the world.
•
At the PJV, the changes included:
expanding the PJV’s CCTV security camera
network to provide coverage of the mine’s major
waste dump areas (where the assaults occurred),
•funding the Porgera District Women’s Association
(PDWA) to hire a women’s welfare liaison officer
to provide support and assistance to victims of
sexual and domestic violence,
•
and hiring additional female security guards,
including in supervisory roles.
Remedy Framework
In the spring of 2011, the PJV and Barrick also began
assessing an appropriate approach to providing remediation –
in alignment with the UNGPs – to individual victims.
In addition, every employee at the PJV received sexual
In order to understand the broader context in the region,
harassment prevention training, and extensive efforts have
the PJV and Barrick conducted research into the extent and
been undertaken to improve community grievance mecha-
nature of violence against women in the Porgera District
nisms at PJV, both on-site and through independent third
and throughout PNG more broadly. This research was
parties such as the PDWA.
designed to ensure whatever remedy was to be developed
would be culturally relevant. A number of components
On a global level, starting in 2011, Barrick instituted a
were included in this initial research: 1) the commissioning
global human rights compliance program, which included
of a study into violence against women in Porgera; 2) a
new human rights and labour policies, new procedures
comprehensive and systematic review of literature regarding
mandating immediate reporting of human rights allega-
the problem of violence against women and broader issues
tions and investigation by independent sources, extensive
related to human rights in PNG; 3) an analysis of interna-
human rights training across the organization – more than
tional norms associated with access to remedy, including
10,000 employees received some form of human rights
under the UNGPs; and 4) an analysis of methods and pro-
training in 2013 – new diligence processes for employee
cesses by which remediation could be provided to survivors
and third-party hiring, and a global human rights risk
of such abuse in situations as challenging as those found in
and impact assessment program at all Barrick operations
the Porgera community.
conducted by independent experts. Progress reports on the
human rights program are submitted on a quarterly basis
It became clear from this research that most affected wom-
to the Corporate Responsibility Committee of the Board of
en would be reluctant to seek remedy through the legal
Directors, which oversees the program.
system or the PJV’s existing grievance mechanism, for fear
of reprisal and re-victimization. Barrick determined that a
In the spring of 2011, the PJV and Barrick also began as-
more appropriate path would be to create an independent
sessing an appropriate approach to providing remediation
remedy framework that could ensure strict confidentiality,
– in alignment with the UNGPs -- to individual victims.
and was aligned with the UNGPs.2
2In the study by Dr. Ganster-Breidler, although approximately 86% of area women interviewed reported being victims of physical violence and
79% reported being victims of sexual violence, only 11% of women respondents reported sexual assaults to police, with fear of reprisal cited as
a key concern.
3
The Porgera Joint Venture
Consultation
Process
Starting in 2011, the PJV and Barrick initiated what became
Guinea Constabulary, the PNG Department of Justice and
an extensive 18-month review, analysis, and consultation
Attorney General, the PNG Chamber of Mines and Petroleum
process to create the basis for a formal remediation frame-
(Women in Mining Program), the PWDA, human rights spe-
work design.
cialists from private legal practice, the Porgera Environmental
Advisory Komiti (PEAK), and others.
This design was discussed in detail during a series of meetings
4
and consultations with international NGOs and experts, in-
Drafts of the resulting Framework were then widely
cluding HRW, UN Women, former U.N. Special Representative
reviewed and commented upon by many of the above in-
for Business and Human Rights, John Ruggie, and other lead-
dividuals and entities before it was finalised. In addition, in
ing international experts on access to remedy and violence
early 2013, after the Framework had begun operating but
against women, particularly in regard to the Pacific Region.
before any claims had proceeded to final review, Barrick’s
Office of the General Counsel retained BSR, a leading sus-
Of particular importance to the Framework design were
tainability consulting company, to conduct an assessment of
local consultations with a wide range of individuals and or-
the Framework and its implementation at a mid-way point
ganizations with specific experience in addressing violence
in the process. The goal of the assessment was to better
against women in PNG. These included civil society groups,
understand whether the implementation of the program
researchers, government agencies, and service providers
comported with the intent of the Remedy Framework and
and groups addressing sexual and domestic violence in the
the UNGPs. A number of aspects of the Framework were
Porgera Valley such as the PWDA and its Women’s Welfare
adjusted following BSR’s review and recommendations.
Office, the Paiam Hospital, the Porgera Medical Centre, the
Additional enhancements were also made based on en-
local police, and the PJV’s own community affairs personnel
gagement with civil society during this early phase.
who interfaced with potential Framework claimants and
other local victims of abuse.
Finally, and perhaps most significantly, advice on the operation of the Framework was received by claimants who
The draft framework design was then further refined during
were going through the process and wished to provide
an intensive consultation workshop with participants from key
input — in particular a group of senior women who called
stakeholder groups (summarized in the table below), including
themselves the “Women Leaders” — as well as the claims
groups who had treated and advised the victims themselves.
assessment team (further described below). Additional
These included the PNG Family and Sexual Violence Action
adjustments were made throughout the operation of the
Committee, the PNG Australia Law and Justice Partnership,
Framework based on that feedback.
3
the Family and Sexual Violence Unit of the Royal Papua New
3At this preliminary stage, because of confidentiality concerns, the victims themselves were not consulted in the Framework design, but the consultations were done by proxy. That changed after claimants began registering grievances, and could provide feedback through the assessment team
in a confidential matter.
Remedy Framework
An Independent,
Fair and Accessible
Process
The Framework is specifically designed to be easily acces-
The individual remediation program, which includes the
sible to women residing in local communities, to be cogni-
mechanisms and processes by which individual claims are
zant of local traditional and/or social circumstances, and to
lodged, considered and resolved, is administered indepen-
be independent of the PJV and Barrick to ensure the privacy
dently of Barrick and the PJV by the Emerging Markets unit
and confidentiality of women submitting claims.
of Cardno, a major international development and infrastructure consultancy with some 290 offices worldwide.
These key principles are detailed in the primary Framework
documentation, which is publicly available on Barrick’s website.4
Cardno’s Emerging Markets unit focuses on complex issues
regarding sustainable development, including law and jus-
The Framework contains two core components: 1) an
tice.6 It has significant experience working in PNG, including
individual remediation program; and 2) a community level
management of the Australian/ PNG Government Law and
program designed to complement other initiatives aimed at
Justice Sector Program.
preventing violence against women, and supporting victims
of violence, including programs being concurrently implemented at the PJV.5
Governance
Claims Process
Under the individual claims process, claims dating back to
1990, when the mine first began operating under Placer
Dome, are eligible for assessment. This timeframe predates
The Framework is independently overseen by the PRF
by more than 15 years Barrick’s 2006 acquisition of Porgera.
Association Inc. (PRFA), a not-for-profit entity incorporated
in PNG, which has a mandate to implement the two com-
The Framework operates under an “opt-in” model. No
ponents of the Framework.
individual is or has been required or pressured by Barrick
or the PJV into pursuing a remedy under the Framework.
The PRFA is overseen by a number of stakeholders and has
Consistent with UN Guiding Principle 29, a claimant is not
drawn on the advice of an Expert Advisory Group comprised
required in any way to waive any rights in order to lodge
of representatives of key organizations involved in programs
a claim, and a claimant may withdraw a claim at any time
to combat violence against women and protect human rights
without any prejudice to future legal claims.
both in Papua New Guinea and elsewhere in the world.
4See p8, Section 2.1 – “Olgeta Meri Igat Raits” Framework Document, http://www.barrick.com/files/porgera/Framework-of-remediation-initiatives.pdf.
5Barrick and the PJV both recognize that the need for a remediation framework of this nature derives in part from endemic area violence, from a
potential lack of confidence some area women may have in formal local justice mechanisms to fully address their rights, and from concerns about
confidentiality. Barrick and the PJV are engaged in substantial efforts to curb local violence against women with programs and resources, as well
as to facilitate the strengthening of the local magisterial and investigative services, particularly regarding family and sexual violence, as part of the
PJV’s Restoring Justice Initiative.
6
See http://www.cardno.com/en-au/MarketsandServices/Pages/Emerging-Markets.aspx.
5
The Porgera Joint Venture
Under the individual claims process, claims dating back
to 1990, when the mine first began operating under
Placer Dome, are eligible for assessment.
Claims that are lodged are assessed by a complaints assess-
numerous honours during her distinguished career, includ-
ment team (CAT) comprised of individuals independent of
ing being named a Dame Commander of the Order of the
PJV and Barrick who have experience in addressing gender-
British Empire, being named a knight of the Legion d’Honneur
based violence issues. The CAT is obligated to ensure that
by France, and receiving the PNG International Woman of
full and free consent is given by a claimant to enable a
Courage Award from the United States. Ume Wainetti, the
claim to be pursued, and assesses whether the claim is eli-
second member of the review panel, is the head of the lead-
gible for consideration under the Framework – an objective
ing NGO in PNG working to prevent violence against women.10
assessment that examines whether the claim meets certain
6
basic threshold requirements.7 An eligible claim then goes
The identity of those involved in the CAT, the independent
to an independent expert for determinations as to legiti-
expert and the review panel are explained to each indi-
macy and, in conjunction with the claimant, an appropriate
vidual claimant.
remediation package.
While not limited solely to the following, remediation may
The individual serving as the independent expert for most
be in the form of financial compensation and/or access to
claims is the former Chief Magistrate of Papua New Guinea,
support programs such as counselling, health care, liveli-
John Numapo. Determinations of legitimacy by the inde-
hood assistance, household goods, micro-credit or eco-
pendent expert, and the remediation packages themselves,
nomic development grants.11 The total value of the remedy
can be appealed by a claimant to a review panel.
package was benchmarked against the upper range of
8
awards that have been rendered in the PNG civil justice
The two-person review panel consists of national leaders in
system for rape and sexual assault, as identified by external
women’s rights and gender violence. Dame Carol Kidu, the
legal counsel based on a review of published decisions.
prominent former PNG parliamentarian, has long been a
9
leading voice for the rights of women in PNG, and earned
7These include whether the claim is against a PJV employee, whether it involves a sexual assault, whether the claimant or a representative are coming forward personally, and whether it occurred between 1 January 1990 and 31 December 2010. Claims after 31 December 2010 are considered
on a case by case basis. The Framework also was open to claims against contractors operating on site, though none were filed.
8
See Guiding Principle 31, Commentary (h).
9
See http://www.leadershipforwomen.com.au/home/about/about/carol-kidu. States.
10 See http://www.inapng.com/cimc/FSVAC.html.
11See Guiding Principle 25, Commentary. The remediation package is individually tailored to reflect the desire of the Claimant, and to provide fair
compensation. See Guiding Principles 29, Commentary & 31(h) and Commentary.
12 Shortly after the Framework began accepting claims, one enhancement made based on engagement with members of civil society was to have
the CAT or a translator certify in writing that translation services in the language of the claimant’s choosing have been offered or provided, to allow for verification and auditability.
Remedy Framework
Fig 1. Outline of Individual Claim and Appeal Processes
STEP 1
CLAIM LODGED
WITH THE CAT
STEP 2
INITIAL REVIEW OF CLAIM
BY THE CAT
STEP 3a
CLAIM ACCEPTED
(CONDITIONAL/UNCONDITIONAL)
INITIAL MEDICAL AND
COUNSELING
CONSULTATIONS PROVIDED
STEP 3b
CLAIM
NOT ACCEPTED
STEP 4b
CLAIM REVIEWED
BY EXPERT
STEP 3b
CLAIMANT NOTIFIED
(CLAIM REJECTED)
APPEAL STEP 4(b1)
(REQUEST FOR MORE
INFORMATION)
DECISION ACCEPTED
CASE CLOSED
(CLAIM REJECTED)
APPEAL STEP 4(b2)
REVISED CLAIM
SUBMITTED
APPEAL STEP 5(1)
DECISION NOT ACCEPTED
APPEAL SUBMITTED
STEP 4a
CLAIM ACCEPTED
(UNCONDITIONAL)
STEP 4a
CLAIM BRIEF SUBMITTED TO
EXPERT
INDEPENDENT EXPERT OR
PANEL DETERMINES REMEDY
CASE CLOSED
(CLAIMANT NOTIFIED,
ENTERS AGREEMENT TO RESOLVE
CLAIM, AND REMEDY PROVIDED)
APPEAL STEP 5(2)
PANEL DETERMINES
APPEAL
APPEAL REJECTED
CASE CLOSED
(CLAIMANT NOTIFIED)
APPEAL STEP 5(3)
APPEAL
ACCEPTED
7
The Porgera Joint Venture
Throughout this process:
5. A claimant may consult with others of their choosing for advice as to whether to participate in, or
1. Translation services are formally offered to every
accept any offer under, the Framework;
claimant who participates.
12
6. Consistent with efforts to implement a Framework
2. The CAT project officer fully explains to the claimant
8
that is locally and culturally accessible, and the
and her representative (if the claimant so requests)
product of consent and dialogue, remedy pack-
the steps involved in pursuing a claim, both orally
ages are developed with the participation of the
and in writing. The CAT project officer further ex-
claimant and tailored to individual needs and
plains that the claimant may opt out at any time and
circumstances; and
take other action, such as pursuing claims through
the regular mine grievance mechanism or formal
legal processes against the PJV and Barrick;
7. The claimant may opt out of the process at any time,
without prejudice to any legal rights, before finalizing the acceptance of an offer under the Framework.
3. The claimant has access to independent legal advice,
either through her own legal representative, funded
The Framework also has significant safeguards built into it
by the program if necessary, or through the appoint-
to protect the interests of eligible claimants, and strengthen
ment of an independent legal adviser funded by a
protections for women from reprisals and from third parties
trust if the claimant has no legal representative;
who may be seeking to profit monetarily from these or
other incidents.
4. An independent legal adviser is required to certify
to the CAT that a claimant has been provided with
legal advice regarding the claim, including the
legal consequences of accepting any offer made
under the Framework;
Remedy Framework
Alignment with
UN Guiding Principles
on Business and
Human Rights
UNGP 31
are explained to claimants who may struggle with literacy.
UNGP 31 identifies eight criteria to ensure the effectiveness
protect claimants from retribution throughout the process
of non-judicial grievance mechanisms, and the Framework
– from the lodging of claims to the delivery of remedy in a
strives to satisfy all eight:
discrete manner.
a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended,
and being accountable for the fair conduct of
grievance processes;
As noted above, active steps also were undertaken to try to
c) Predictable; providing a clear and known procedure with an indicative time frame for each
stage, and clarity on the types of process and
outcome available and means of monitoring
implementation;
The Assessment Team is comprised of women with experience in addressing issues related to gender-based violence.
There are strict procedures, publicly available, to be fol-
The Remedy Team is comprised predominantly of women
lowed in respect to the lodgment, recording and processing
from PNG, including senior national female leaders, who
of all claims, which ensures predictability and consistency
also have experience in addressing issues related to violence
in case management. During initial meetings, claimants
against women. This approach, along with the indepen-
are provided with clear explanations of each stage in the
dence of the process and the strict procedures, was de-
process and the likely range of remedies available. Those
signed to help earn the trust of potential claimants to enter
procedures are adhered to throughout the process.
and pursue the process.
b) Accessible: being known to all stakeholder
groups for whose use they are intended, and
providing adequate assistance for those who
may face particular barriers to access;
d) Equitable: seeking to ensure that aggrieved
parties have reasonable access to sources
of information, advice and expertise necessary to engage in a grievance process on fair,
informed and respectful terms;
Potential victims were informed about the program in a
All claimants may bring 3rd party supporters or legal advisers
manner consistent with the advice of local experts through
to their consultations, and many women elected to have a
processes designed to promote confidentiality and avoid
close family member attend meetings and appointments ar-
re-victimization. In addition, the program itself is locally
ranged through the framework. Assistance can be provided
based in a discrete and private setting, is promoted through
to claimants wishing to retain their own legal advisors, and
women’s networks, and transport and communications
an independent legal advisor funded by a third party trust
assistance is provided where required or requested. As well,
is made available to all claimants during the process, and
translators are provided to each claimant, and documents
is specifically required to act solely in the interests of the
9
The Porgera Joint Venture
There are strict procedures, publicly available, to be followed in
respect to the lodgment, recording and processing of all claims,
which ensures predictability and consistency in case management.
claimants. Materials and explanations also were created to
changes have been made at the PJV to ensure non-repe-
help ensure respectful behavior by participants.
tition of the harms, and community-wide initiatives have
been undertaken to address the larger issue of sexual vio-
e) Transparent: keeping parties to a grievance
lence in the area. Considerations regarding the rights and
informed about its progress, and providing
welfare of claimants are paramount at all times. Examples
sufficient information about the mechanism’s
of this approach include strict provisions protecting the
performance to build confidence in its effec-
privacy of the claimants, and the provision of medical and
tiveness and meet any public interest at stake;
psychological support services to all claimants irrespective of
whether they accept a remedy package or not.
Contact with claimants is maintained throughout the
10
g) A source of continuous learning: drawing on
process via a dedicated liaison officer, permanently based in
the Porgera Valley. This allows claimants to be updated on
relevant measures to identify lessons for im-
the progress of their claims. The PJV and Barrick have also
proving the mechanism and preventing future
welcomed communication with interested external non-
grievances and harm;
claimant stakeholders regarding the design and implementation of the claims process, including publishing updates
and
on the program on Barrick’s website.
h) Based on engagement and dialogue: conf)
Rights-compatible: ensuring that outcomes
sulting the stakeholder groups for whose
and remedies accord with internationally
use they are intended on their design and
recognized human rights;
performance, and focusing on dialogue as the
means to address and resolve grievances.
Great care was taken during the design phase of the project
to ensure that the mechanism was rights-compatible, and
As indicated earlier, the PJV and Barrick actively sought con-
did not inadvertently create the risk of rights being fur-
sultations with a range of interested external non-claimant
ther breached. There are a range of remedies available to
stakeholders regarding the design and implementation of
individual claimants, and remedy packages are developed
the claims process, including those who advised and con-
through consultations between the claims team and claim-
sulted with the claimants themselves. After the Framework
ants themselves. The total value of the package is bench-
began operating, but before any claims proceeded to final
marked against the upper range of civil awards for rape and
stages, it was further adjusted based on consultations
sexual assaults in the PNG formal justice sector, as identified
with claimants participating in the process (in particular
by external legal counsel. In addition, at the conclusion of
the “Women Leaders”), as well as the remedy team, BSR,
the process, the company formally apologizes to the claim-
members of civil society, and other stakeholders. Resolution
ant. Furthermore, a wide range of operational and systemic
of the grievances is also achieved through consultation and
Remedy Framework
Considerations regarding the
rights and welfare of claimants
are paramount at all times.
dialogue, including third party attorneys and advisors who
may participate with or on a claimant’s behalf. Claimants
who disagree with an initial remedy decision can file an
appeal to an independent review panel. In addition, Barrick
and the PJV have instituted a wide range of programs
to help deter and prevent sexual assaults by employees
and contractors.
We believe that that the design of the program meets
UNGP 31, and that view is supported by an opinion of
the UNOHCHR (see Appendix A attached), which assessed
the Porgera Remedy Framework and noted: “The content
of the framework document and the Manual appear to
indicate that efforts have been made to design the process
in a manner that complies with the effectiveness criteria
stipulated and defined in the Guiding Principles, including
predictability, equitability and transparency.” Barrick also
engaged BSR, a leading sustainability consulting company,
to provide a review after implementation had begun to help
ensure the program was being implemented as intended.
However, as the UNOHCHR further suggested, Barrick
and the PJV will also seek an independent review of the
Framework now that the process has been concluded to
assess whether it was implemented in a manner consistent
with Principle 31.
UNGP 29
Specific concerns have been raised that the mechanism is
not compatible with UNGP 29, which relates to the establishment of or participation in an effective operational-level
grievance mechanism. The Commentary to UNGP 29 states
that operational-level grievance mechanisms “should not be
used to … preclude access to judicial or other non-judicial
grievance mechanisms.” As the UNOHCHR opinion makes
clear, that Commentary is concerned with a waiver of
rights for seeking access to a grievance mechanism, not the
consensual resolution of a grievance. Under the Framework,
claimants are not required to waive any rights in accessing
the mechanism. However, if at the end of the process a
claimant wishes to resolve her claim following consultation
with legal advisors and others, there is a short resolution
agreement that includes a provision in which the claimant
agrees that she will not seek civil damages against the PJV
or Barrick for the same claims being resolved. The provision
was included to create finality for the victim and the PJV
and Barrick, and is narrowly drafted; it does not preclude
assisting others in making claims, making legal claims
against the individual perpetrators or others, testifying as
a witness in another proceeding, lodging a criminal case,
or participating in any criminal process. As the UNOHCHR
made clear, and as echoed by BSR (see Appendix E attached), the provision is not incompatible with UNGP 29.
11
The Porgera Joint Venture
A Summary of
Outcomes to Date
The following table provides a summary of progress with
respect to the assessment of individual claims lodged under
the Remediation Framework.
CLAIM STATUS
Final Settlement Deed signed by CAT and Claimant
Claims Withdrawn
Claims discontinued (See Note 1)
Total Claims
12
NUMBER OF CLAIMS
120
11
6
137
NOTES:
1. A
total of 6 claims are considered discontinued. 1 claim has been classified as discontinued owing to a lack of contact from that claimant
of over 12 months. A further 5 claims are considered discontinued as the claimants have died of unrelated illness during the claims process.
Remedy Framework
Individual
Remediation Package
Components
The following sections provide a summary of the value and
types of remedy package components being awarded as
part of the Porgera Remediation Framework.
a)Individual Remediation
Package Valuations
The following chart shows the range and average value
benchmarked against the upper range of civil awards for
of the individual remedy packages that have been ac-
rape and sexual assaults in the PNG formal justice sector, as
cepted by claimants to date which, as noted above, were
identified by external legal counsel.
PACKAGE TYPE
VALUE OF PACKAGE (KINA)
Highest value package
K32,740
Lowest value package
K23,040
Average package value
K23,630
b)Individual Remediation Package
Components
Package components are broadly classified into two
Bank of the South Pacific (BSP), which maintains a branch
categories: (Part A) personal services, treatments, develop-
in the Porgera Valley, and claimants are also given financial
ment grants and training, or (Part B) livelihood support and
literacy training to provide an understanding of basic bank-
other financial assistance. Note that some components are
ing processes.
inter-related. For example, small business funding is only
provided in conjunction with business start-up training, to
All forms of direct financial assistance are paid into these
ensure maximum benefits are extracted from the eventual
accounts unless claimants specifically request other arrange-
start-up grant.
ments, (such as payment directly to a trade goods provider
or similar).
All claimants are eligible for financial assistance of some
kind. To receive that assistance safely, claimants are pro-
Medical benefits and school fees are paid directly to service
vided with support to establish a banking account with the
providers through a voucher and invoicing system.
13
The Porgera Joint Venture
All claimants are eligible
for financial assistance
of some kind.
Table 1 – Summary of Individual Remediation Package Components
14
REMEDY (PART A)
DESCRIPTION
Counselling
Min 4 sessions
Medical examination
Min 2 sessions
Corrective surgery
1 surgery plus follow up
Associated medications
Prescribed medications
Physiotherapy and rehabilitation
Min 8 sessions
Dental treatment
Min 2 session
Business start-up funds
Initial grant to establish / operate own enterprise
Business skills training
Business start-up training program
School fees
2 years per child
Return to home assistance
Transport and 3 months living allowance to return to home village
REMEDY (PART B)
DESCRIPTION
Direct livelihood assistance
Financial support grant
Bank account set up and deposit
Training in banking literacy, establishment of banking account, and deposit of all financial
components of package
Remedy Framework
Conclusion
While challenging conditions exist at the Porgera mine, the
We reiterate our condemnation of violence against women
allegations of sexual violence, and the thorough investiga-
in the strongest possible terms; it is a serious crime and
tions that followed, led the company to take concrete,
is not tolerated in any form at any Barrick workplace.
meaningful actions and strengthen its processes, particu-
We have zero tolerance for human rights violations and
larly with respect to security, human rights and women’s
investigate all reports, suspicions or rumours of human
welfare. The Framework has been an important part of that
rights abuses and take strong and appropriate action. Any
response. Through this response, we hope to demonstrate
employee implicated in serious human rights violations or
our determination to prevent acts of violence against wom-
other serious crimes, or who has direct knowledge of but
en and improve our performance at Porgera and globally.
fails to report such incidents, will be terminated, and where
we create negative human rights impacts, we will provide
an appropriate remedy.
15
Remedy Framework
Appendix A
Opinion of the UN Office of the High
Commissioner for Human Rights on
the Porgera Remedy Framework
17
The Porgera Joint Venture
HAUT-COMMISSARIAT AUX DROITS DE L’HOMME • OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND
www.ohchr.org • TEL: +41 22 928 9299• FAX: +41 22 928 9010 • E-MAIL: [email protected]
Re: Allegations regarding the Porgera Joint Venture remedy
framework
The United Nations High Commissioner for Human Rights has been
approached by the NGO MiningWatch Canada (MWC), the mining company Barrick
and others in a series of letters and petitions regarding the Olgeta Meri Igat Raits, a
framework of remediation initiatives developed by Barrick Gold Corporation
(“Barrick”) and the Porgera Joint Venture (“PJV) for women who have been victims of
sexual violence by security personnel at the Porgera mine in Papua New Guinea. The
programme was initiated by Barrick in response to a 2011 report by Human Rights
Watch documenting sexual abuse by PJV security personnel.1
18
This document provides an opinion from the Office of the United Nations High
Commissioner for Human Rights (OHCHR) on some of the procedural and substantive
issues raised in the letters and petitions concerning the Porgera remediation framework.
OHCHR, in collaboration with the United Nations Working Group on the issue of
human rights and transnational corporations and other business enterprises, has been
given a mandate by the UN Secretary-General to provide guidance and clarification on
issues relating to the interpretation of the UN Guiding Principles on business and
human rights.2 The UN Guiding Principles provides an authoritative framework for
company level grievance mechanisms such as the Porgera remediation framework. In
the absence of an independent investigation by OHCHR, it is not possible to comment
on the implementation on the Porgera framework on the ground. Instead, this opinion
provides principled interpretive guidance based on the Guiding Principles. It is
nevertheless hoped that this guidance will help to bring clarity with respect to the issues
raised by the two parties and serve as a foundation for dialogue.
It should be noted that this opinion is limited to responding to the letters and
petitions received by the High Commissioner and focuses exclusively on the Porgera
remediation framework. The opinion letter therefore does not address the obligations of
the Government of Papua New Guinea under international human rights law and
standards to ensure reparation for victims and accountability of the perpetrators of the
sexual violence that underlies the establishment of the Porgera remediation
framework.3
1
In February 2011, Human Rights Watch published the report “Gold’s Costly Dividend”, outlining the
findings of its investigations into allegations of abuse at the mine.
www.hrw.org/en/reports/2011/02/01/gold-s-costly-dividend.
2
A/HRC/21/21, report of the Secretary-General on the contribution of the UN system to the advancement
of the business and human rights agenda, para. 95.
3
See report by the Special Rapporteur on violence against women, its causes and consequences from a
country visit to Papua New Guinea for a consideration of the Government’s obligations in this regard.
http://www.ohchr.org/Documents/Issues/Women/A-HRC-23-49-Add-2_en.pdf
Remedy Framework
PAGE 2
Background
In letters dated 19 March and 5 April 2013, MWC made a series of allegations
regarding the individual reparations programme which forms part of the Porgera
remediation framework. As part of a reparations settlement, the claimant is expected to
sign an agreement not to pursue any further claim for compensation, or any civil legal
action, that relates to the acts for which the reparations settlement is provided against
the entities involved in the Porgera remediation framework.4 MWC asserted that such
an agreement is contrary to the UN Guiding Principles on business and human rights
and requested the High Commissioner to ask Barrick to remove this element from the
individual reparations programme.
Other allegations made by MWC concerned process issues, such as alleged lack
of transparency for the victims, lack of access to independent legal counsel and
translations services for the claimants, as well as more substantive issues relating to the
type of remedies offered through the programme. MWC also criticized Barrick for
failing to consult two local organizations, Akali Tange Association (ATA) and the
Porgera Landowners Association (PLOA), in the development of the remediation
framework, thereby allegedly damaging the framework’s credibility and legitimacy
locally.
In their letter dated 5 April 2013, MWC further requested the High
Commissioner to ask Barrick “to open the remedy process up to a truly public,
transparent, inclusive and independent review aimed at resolving the issues raised.”
The allegations made by MWC have been reiterated by a number of
organizations and individuals in response to a public “action alert” issued by MWC.
In a letter to the High Commissioner dated 22 March 2013, and in a public
statement issued on 16 April 2013, Barrick refuted both the procedural and substantive
allegations made by MWC, and referred to on-going improvements to the Porgera
remediation framework.5 Details were provided with regard to the 18-months process
of research, analysis and consultation with leading national and international experts
including on violence against women that led to the development of the framework, the
provisions for independence of those involved in implementing the framework, and
provisions for translation and legal services offered to claimants. Barrick emphasized
that one of the objectives of the framework is to facilitate access to effective justice
mechanisms where requested by a particular claimant, and that support is provided to
pursue legal claims or report events to the PNG police, should a claimant choose to do
so. Barrick stressed that a claimant retains the option of pursuing separate legal
channels at all times during the claims consideration process. However, Barrick
maintained that if a claimant is satisfied with an offer to resolve a grievance under the
framework, “it is appropriate that claims against Barrick, PJV and PRFA should be
released in order to bring finality to the process. In that circumstance, the independent
legal advisor expressly explains the consequences of such a release before it is signed.”
According to Barrick, this is not in contravention with the UN Guiding Principles.
4
The language of the legal waiver clause has evolved since the first letter from MWC on this point. On 7
June 2013, Barrick posted a summary of recent changes to the Framework which included a revised
version of the waiver clause. http://www.barrick.com/files/porgera/Summary-of-Recent-Changes-to-thePorgera-Remediation-Framework.pdf. See for a detailed discussion of the waiver issue below.
5
Details were included in the 7 June 2013 posting, ibid.
19
The Porgera Joint Venture
PAGE 3
In a letter to the High Commissioner dated 5 April 2013, Human Rights Watch
issued a statement clarifying that MWC’s allegations that Human Rights Watch had
“relied heavily” on the local organizations PLOA and ATA in the preparation of its
report on sexual violence at the Porgera Joint Venture mine was “inaccurate”.
Furthermore, the High Commissioner received a letter dated 24 March 2013
(received on 8 April 2013) from Dame Carol Anne Kidu6, expressing support for the
framework, and refuting some of the procedural allegations made by MWC, and
alleging that its approach revealed limited understanding of the local context.
On 8 April 2013, the High Commissioner also received an undated letter from
Ms. Ume Wainetti,7 who also expressed support for the framework and criticised
MWC’s approach on gender-based grounds, and disputed its allegations concerning the
operation of the framework on the ground.
The last letter received from MWC, dated 14 May 2013, reiterated and
elaborated on some of the points made in previous letters, and called on the High
Commissioner to support the request that Barrick removes the legal waiver. This letter
furthermore called on the High Commissioner to investigate the case of Barrick’s
remedy process in Porgera, and to provide an official statement of principles for project
level non-judicial remedy programs.
20
A letter, co-signed by 77 non-governmental organizations from different parts
of the world, was attached to the 14 May 2013 MWC letter, reiterating the calls made
by MWC.
In an email to the High Commissioner dated 18 May 2013, Barrick attached a
copy of the Claims Process Procedures Manual for the individual reparations program,
which contains a final version of the the legal waiver provision contained in the
agreement to resolve claims filed under the Porgera remediation framework. The
manual has since been posted on-line.
Overview of the Porgera remediation programme
The key components of the remediation framework are set out in the document
“Oleta Meri Igat Raits – A framework for remediation initiatives in response to
violence against women in the Porgera Valley” (‘the framework’).8
The framework comprises both an individual reparations programmes, and
community-wide projects to develop the capacity of the local community to address the
issue of violence against women. This OHCHR opinion letter is responding to
allegations made in relation to the individual reparations programme.
The individual reparations programme is intended to provide appropriate
support and services to women who have been the subject of sexual violence
committed by current or former employees of the PJV. Claims dating back to 1990,
6
A human rights activist in Papua New Guinea, as well as a member of the review panel for the
remediation programme and a participant in preparing the community programming component of the
reparation package that will follow the assessment of claims by individual victims under the programme.
7
A local gender expert and the National Convenor of the Papua New Guinea Family and Sexual Violence
Action Committee which participated in the process that developed the Porgera remediation programme.
8
http://www.barrick.com/files/porgera/Framework-of-remediation-initiatives.pdf, updated on 16 May
2013.
Remedy Framework
PAGE 4
when the mine first began operating (16 years before Barrick became involved in the
operation), are eligible for assessment.9 The framework stipulates that support
programmes and services will be chosen in consultation with the affected women, to
help meet their specific needs. The programme is intended to operate with other aspects
of the Remediation Framework, including community level initiatives, and Papua New
Guinea public policy initiatives.
The Porgera remediation programme is run by the Porgera Remediation
Framework Association Inc (PRFA), an association incorporated under the law of
Papua New Guinea and independent of Barrick, the PJV or the PJV Contractors.
Barrick provides funding for the framework through a Trust Fund managed by an
independent Trustee.
According to Barrick, by 22 March 2013 approximately 170 women had been
interviewed after filing potential claims under the individual reparations programme.
Some 93 of those women are reported to have been assessed as having claims that meet
the initial threshold eligibility criteria for consideration under the programme. At the
time of writing, no claim has as yet proceeded to finalisation under the programme.
The UN Guiding Principles on Business and Human Rights and access
to effective remedy
The UN Guiding Principles on Business and Human Rights provide an
authoritative framework for how to prevent and address adverse human rights impacts
linked to business. The principles on Access to Remedy recognize that effective
judicial remedy is at the core of the international human rights framework and remains
an essential part of the State’s duty to protect human rights.10 They affirm the
obligation of States, as derived from international human rights standards, to take
appropriate steps to ensure, through judicial, administrative, legislative or other
appropriate means, that those affected by business related human rights abuse have
access to effective remedy.11
According to the Guiding Principles, State-based judicial and non-judicial
grievance mechanisms should form the foundation of a wider system of remedy.
Within such a system, operational-level grievance mechanisms can provide early stage
recourse and resolution.12 This is particularly so in situations where victims of
business-related human rights abuses may not have access to effective remedy through
the court system. The Guiding Principles recognize that grievance mechanisms
established by companies may fulfil an important role in enabling victims to have their
grievances heard and in obtaining remedy for harm suffered13.
Where a business enterprise has identified that it has caused or contributed to
adverse human rights impacts, the Guiding Principles state that it should provide for or
cooperate in their remediation through legitimate processes.14 This is an indispensable
part of the corporate responsibility to respect human rights, as laid down in the Guiding
Principles.
9
Barrick acquired the Porgera operation in 2006.
Commentary to Guiding Principle 26.
11
Guiding Principle 25.
12
Commentary to Guiding Principle 25.
13
Guiding Principle 29.
14
Guiding Principle 22.
10
21
The Porgera Joint Venture
PAGE 5
Notwithstanding situations where a business enterprise has identified its
involvement with an adverse human rights impact, Guiding Principle 29 calls on all
companies to establish or participate in operational-level grievance mechanisms in
order to enable grievances to be remedied directly and at the earliest possible stage.
The Commentary to Guiding Principle 29 further indicates that operational-level
grievance mechanisms should not be used to preclude access to judicial or non-judicial
grievance mechanisms. In other words, participation in an operational-level grievance
mechanism must be without prejudice to individuals’ right to go to court. At the same
time, provided that both parties agree, they are entitled to settle a claim through such
operational-level grievance mechanisms.
In all cases, any non-judicial grievance mechanism should comply with the
effectiveness criteria set out in Guiding Principle 31. This principle requires that
operational level grievance mechanisms should be:
a) Legitimate: enabling trust from the stakeholder groups for whose use they
are intended, and being accountable for the fair conduct of grievance
processes;
b) Accessible: being known to all stakeholder groups for whose use they are
intended, and providing adequate assistance for those who may face
particular barriers to access;
c) Predictable; providing a clear and known procedure with an indicative time
frame for each stage, and clarity on the types of process and outcome
available and means of monitoring implementation;
22
d) Equitable: seeking to ensure that aggrieved parties have reasonable access to
sources of information, advice and expertise necessary to engage in a
grievance process on fair, informed and respectful terms;
e) Transparent: keeping parties to a grievance informed about its progress, and
providing sufficient information about the mechanism’s performance to
build confidence in its effectiveness and meet any public interest at stake;
f) Rights-compatible: ensuring that outcomes and remedies accord with
internationally recognized human rights;
g) A source of continuous learning: drawing on relevant measures to identify
lessons for improving the mechanism and preventing future grievances and
harm
h) Based on engagement and dialogue: consulting the stakeholder groups for
whose use they are intended on their design and performance, and focusing
on dialogue as the means to address and resolve grievances.15
The criteria are inter-related and should be taken as a whole. Excluding one will
weaken the ability to meet others and make the mechanism as a whole less effective.16
15
Points a) to g) apply to all non-judicial grievance mechanisms; point h) is specific to operational-level
mechanisms.
16
OHCHR Interpretive Guide, p. 75.
Remedy Framework
PAGE 6
The Porgera remediation framework is an operational level grievance
mechanism that was set up as a direct response to well-founded allegations of sexual
violence against women residing in the Porgera Valley, perpetrated by men who were
employed at the Porgera mine. The Porgera remediation framework and its individual
reparations programme should comply with the provisions in the Guiding Principles,
including the effectiveness criteria for non-judicial grievance mechanisms, as stated in
Guiding Principle 31.
These effectiveness criteria provide a benchmark for designing, revising or
assessing a non-judicial grievance mechanism like the Porgera remediation framework
to help ensure that it is effective in practice17.
Where outcomes have implications for human rights, care should be taken to
ensure that they are in line with internationally recognized human rights.18 In other
words, assessing whether the programme is rights-compatible in terms of the outcomes
and remedies it offers to the claimants, reference should be had to applicable
international standards on remedy, such as the UN Basic Principles and Guidelines on
the Right to a Remedy and Reparation.19
Allegation concerning legal waivers
According to MWC, the process for finalisation of claims under the individual
reparations programme, which include the release of claims against the companies
involved upon acceptance of a remedy package, is contrary to the UN Guiding
Principles. According to MWC, the claimants have not benefitted from any of the
protections or safeguards provided by a legal procedure or a court of law and the
program has no independent accountability mechanism.
The original wording of the legal waiver clause read as follows:
“the claimant agrees that she will not pursue or participate in any legal action
against PJV, PRFA [Porgera Remediation Framework Association Inc.] or
Barrick in or outside of PNG. PRFA and Barrick will be able to rely on the
agreement as a bar to any legal proceedings which may be brought by the
claimant in breach of the agreement.”
In its response to MWC’s initial letter, Barrick refuted the allegation that the
release clause is inconsistent with the Guiding Principles, emphasising that “under the
Framework a claimant is not required to release any right, at any time, to make a claim
against the perpetrator of the violent act.” Barrick also noted that “Barrick and PJV
fully expect that the Framework will continue to evolve in order to respond to
legitimate issues and expectations that might arise during the course of its operations.
Changes and clarifications already have been, and continue to be, implemented in
response to engagement with stakeholders who have raised good faith concerns and
comments.”20
According to the Claims Process Procedures Manual, the release by the
claimant of any further claim for compensation or any civil legal action is part of the
17
Commentary to Guiding Principle 31.
Ibid.
19
http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx
20
Barrick letter to the High Commissioner, 23 March 2013.
18
23
The Porgera Joint Venture
PAGE 7
final agreement accepted by the claimant and signed by all parties stipulating the nature
of the reparations settlement, and should be considered in the context of the overall
process leading to the agreement (see below discussion of the allegations relating to the
implementation of the process).
The final agreement is signed by the claimant, Barrick, and the Porgera
Remediation Framework Association Inc. According to the template agreement
contained in the Manual, the agreement recites that the claimant was the subject of
sexual violence attributable to one or more current or former employees of the PJV (the
Conduct). The agreement also states that “[w]hile not admitting any liability, Barrick
acknowledges the Conduct, expresses its regret for the harm suffered by the claimant
and encourages the claimant to pursue criminal and any other civil legal action against
the alleged individual perpetrator(s) of the Conduct.”
On 16 May 2013, a revised wording of the waiver clause was posted on the
Barrick website. The relevant clause now reads:
24
“The claimant agrees that, in consideration for the Reparations, on and from the
date of signing this Agreement, she will not pursue any claim for compensation,
or any civil legal action, that relates in any way to the Conduct [the claimant
was the subject of sexual violence attributable to one or more current or former
employees of the Porgera Joint Venture], against the Porgera Joint Venture,
PRFA or Barrick in Papua New Guinea or in any other jurisdiction. This
expressly excludes any criminal action that may be brought by any state,
governmental or international entity. This agreement may be pleaded and
tendered by Barrick, the PJV and the PRFS as an absolute bar and defence to
any civil legal action relying on any acts related to the Conduct which the
claimant may bring or participate in against Barrick, the PJV or PRFA in any
form of dispute resolution process connected to such a legal proceeding.”21
Considerations regarding waiving further legal claims upon settling a claim through
a non-judicial grievance mechanism
The Guiding Principles do not explicitly address the question of whether finality
of a civil claim against a company which has identified its involvement with an adverse
human rights impact can be achieved through operational-level grievance mechanisms.
The issue of waiving additional civil claims for grievances settled through an
operational-level grievance mechanism is distinct from the issue of possible criminal
proceedings: criminal proceedings against perpetrators of crime reflect the public
interest in, and the State’s responsibilities for, prosecuting and punishing certain
conduct deemed sufficiently harmful. The revised version of the waiver clause explicitly
acknowledges that the individual reparations programme does not seek to bar
participation in such proceedings. Further, a non-judicial grievance mechanism to
address grievances against companies involved in human rights abuse which include the
possibility of finalizing claims against the companies does not in any way relieve or
diminish the obligations of States under international human rights law to pursue legal
accountability of any actor involved in human rights abuses, including potential
criminal liability.
Remedy Framework
PAGE 8
The Commentary to Guiding Principle 29 that operational level grievance
mechanisms “should not be used to preclude access to judicial or other non-judicial
mechanisms” does not distinguish between access to either civil and criminal
proceedings. It reflects the recognition in the Guiding Principles that state-based judicial
and non-judicial grievance mechanisms form the foundation of a wider system of
remedy,22 while also recognising important role of operational-level grievance
mechanisms in providing direct remediation. A claimant should be free to pursue
parallel proceedings and to leave the operational-level grievance mechanism process at
any time, as in the case with the individual reparations programme.
Guiding Principle 31(f) states that outcomes and remedies of operational-level
grievance mechanisms should be “rights-compatible”, that is they must be in line with
internationally recognized human rights.23 Consideration of rights-compatibility cannot
be limited to the substance of the reparations agreement alone, but must include
consideration of any human rights outcomes and implications of the agreement. This
includes consideration of whether barring any further civil legal action related to the
acts for an individual reparations agreement has been reached is in line with
internationally recognized human rights standards
The international human rights legal framework does not explicitly address the
issue of the final settling of human rights related grievances against a company through
a non-judicial mechanism. For state-based remediation frameworks there is no
consistent practice or jurisprudence on the issue from regional and national courts. The
OHCHR Rule of Law Tools for Post-Conflict States: Reparations Programmes, while
dealing specifically with post-conflict situations, states that “it is difficult to decide, in
the abstract, whether it is desirable, in general, for [state-based] reparations
programmes to be final [meaning extinguishing further civil claims]”.24 It goes on to
note that contextual factors may play a significant role in deciding on the desirability of
making reparations programmes final, such as the functioning or not of legal systems;
preventing anyone from receiving compensation twice for the same violation; and that
the presumption should be to leave the possibility of accessing courts as un-curtailed as
possible.
Based on the above, the presumption should be that as far as possible, no
waiver should be imposed on any claims settled through a non-judicial grievance
mechanism. Nonetheless, and as there is no prohibition per se on legal waivers in
current international standards and practice, situations may arise where business
enterprises wish to ensure that, for reasons of predictability and finality, a legal waiver
be required from claimants at the end of a remediation process. In such instances, the
legal waiver should be as narrowly construed as possible,25 and preserve the right of
claimants to seek judicial recourse for any criminal claims. This is particularly
important for instances of gross human rights violations, such as rape and sexual
violence. At no point, and in no circumstance, should such a waiver seek to preclude
22
Commentary to Guiding Principle 25.
Commentary to Guiding Principle 31.
24
Rule-of-law tools for post-conflict states – Reparations programmes, OHCHR 2008, p. 35.
25
In a Press statement dated 7 June 2013, Barrick points out that “the legal waiver is narrowly framed to
exclude criminal matters, exclude participation in the claims of others, and cover only instances where a
claimant may seek a double recovery from the company for the same injury”.
23
25
The Porgera Joint Venture
PAGE 9
criminal proceedings against the alleged perpetrator or the company, or prevent the
victim from joining or participating in any criminal case.
In practice, agreements containing legal waiver clauses can be the subject of
judicial proceedings in many jurisdictions for issues of contract law (for example,
alleging fraud); and national courts may further be requested to rule on the
admissibility of such a clause in a particular case and context.
Process-related allegations
As outlined above, several of the allegations made against the Porgera
remediation framework relate to the process of its implementation, including when it
comes to transparency, interpretation, and independence of legal advice provided to
claimants.
The Claims Process Procedures Manual (“the Manual”)26 for the Porgera
Remediation Programme sets out in detail the various elements of the claims process. It
directly touches upon a number of the issues raised by MWC and others, including
•
Translation/interpretation into languages understood by the claimants:
The Manual stipulates that “at every step of the process, every claimant
will be offered the services of a translator in a language of their
choosing.”
26
•
Information provided to claimants about the programme in a manner that
can be understood:
The Manual stipulates that an initial meeting must be held with each
Claimant, during which the overall process must be explained orally and
in writing in a language that the Claimant can understand. The Claimant
will also be advised to bring a support person and be assisted to access
independent legal advice. Further information provided to the Claimant
include the criteria for determining eligibility and legitimacy, the steps
available to protect confidentiality, safety and privacy of the Claimant,
and that the Claimant is encouraged but not required to report any
criminal conduct to the police.
•
Independence of legal advice:
The Manual furthermore stipulates that to participate in the Programme,
a Claimant must have access to independent legal advice. If the
Claimant does not have a lawyer, the Claims Assessment Team will
facilitate access to an independent legal adviser. The claimant is
informed that legal fees will be paid directly to the independent legal
adviser by the programme.27
26
http://www.barrick.com/files/porgera/Claims-Process-Procedures-Manual.pdf
MWC express concern that the independent legal representation is “paid for by Barrick”. It bears
repeating that Barrick provides funding for the programme through a Trust Fund managed by an
independent trustee. It is not clear from the letters who else MWC would expect to fund legal
representation for victims in the process.
27
Remedy Framework
PAGE 10
The content of the framework document and the Manual appear to indicate that
efforts have been made to design the process in a manner that complies with the
effectiveness criteria stipulated and defined in the Guiding Principles, including
predictability, equitability and transparency.
However, the information received from MWC in relation to these points relate
to the actual implementation in practice of the programme. In the absence of an
independent investigation as to how the programme is applied and perceived by the
claimants, OHCHR is not able to comment on the arguments made by MWC and
Barrick respectively in relation to how the programme is implemented. OHCHR
nevertheless recommends that Barrick take appropriate steps to ensure that the
implementation of the programme is carried out in accordance with the procedural
safeguards stipulated in the Manual, and in a manner consistent with the Guiding
Principles.28
OHCHR recognizes that the situation on the ground is very complex. It also
recognizes that the state of relations between MWC and its two local partner
organizations on the one hand, and Barrick on the other, may prevent any significant
collaboration in addressing or clarifying the concerns raised.
OHCHR recommends that in addition to any further investigation by Barrick
itself as to whether the implementation of the programme corresponds to what is
stipulated in the Manual and is in conformity with the Guiding Principles, efforts should
be made to establish a process to identify an individual, group of individuals or
organization, considered credible by Barrick, the claimants and other key stakeholders,
to conduct an independent review of the Porgera remediation programme. If necessary,
the review should identify possible areas for improvement in the implementation of the
programme. The independent review should be focused on the perspectives of the
victims of sexual abuse, and the implementation of the programme should be assessed
against the effectiveness criteria for non-judicial remedy mechanisms as set out in
Guiding Principle 31. An inclusive and transparent process for establishing and
conducting such an independent review could help address any residual concerns
stakeholders may have about the implementation of the programme.
Allegations concerning the nature of the remedies offered by the Porgera
remediation programme
In its letter of 19 March 2013, MWC alleged that the remedy offered by the
Porgera remediation programme is not tailored to the harm that has been suffered, and
that the remedy is not culturally appropriate. Women interviewed by MWC were
reported to have indicated a desire for forms of compensation that addressed the
specific harms they had suffered as a result of the rape, such as loss of housing. One
woman was reported to have requested a particular remedy from those offered, only to
be told later that she would be receiving “chicklets”. Women were also reported to
have said that a culturally appropriate form of compensation for a transgression as
serious as rape would be pigs and the equivalent value of these pigs in cash, and that
the remedies offered was not in alignment with what they would be offered through a
traditional dispute resolution procedure.
28
Barrick’s recent changes to the Framework appear to respond to some issues raised by MWC. Some of
the changes were instituted following a review of the programme commissioned by Barrick and carried
out by Business for Social Responsibility (BSR). The BSR review has not been made public.
27
The Porgera Joint Venture
PAGE 11
According to the Manual, the Claims Assessment Team prepares a report on the
eligibility and legitimacy of a claim. Where a claim is found to meet the criteria of the
programme, the report will include recommendations of any programs that should be
made available to the claimant as remedy. These programs will be chosen with the
claimant during the follow-up meeting, and selected from a standard range of
programmes available to claimants in general. These may include, but are not limited
to: counselling, health care, education and training, appropriate financial reparations for
personal harm or economic damage suffered (at levels reflecting those awarded for
sexual offences in the civil justice system in Papua New Guinea), livelihood assistance,
micro-credit or economic development grants, assistance with the payment of school
fees for the claimant’s children, assistance with returning to the home village or
province, and support for making a complaint with the Royal Papua New Guinea
Constabulary (RPNGC).
Guiding Principle 31 stipulates that non-judicial grievance mechanisms must be
rights-compatible, meaning that outcomes and remedies accord with internationally
recognized human rights. The UN Basic Principles and Guidelines on the Right to
Remedy and Reparation29 are instructive in offering a broad categorization of
reparations measures:30
•
Restitution refers to measures which restore the victim to the original
situation before the gross human rights violations occurred, for example
return to one’s place of residence.
•
Compensation should be provided for any economically assessable
damage, as appropriate and proportional to the gravity of the violation
and the circumstances of each case, such as lost opportunities and moral
damage.
•
Rehabilitation should include medical and psychological care as well as
legal and social services.
•
Satisfaction is a broad category of measures, ranging from those aiming
at a cessation of violations, to truth-seeking and public apologies.
•
Guarantees of non-repetition are another broad category which includes
institutional reforms, human rights training and psychological and social
services.
28
According to OHCHR’s Interpretive Guide, remedies from an operational-level
grievance mechanism can take a variety of forms and may include an apology,
provisions to ensure the harm cannot recur, compensation (financial or other) for the
harm, cessation of a particular activity or relationship, or some other form of remedy
agreed by the parties. The Guide also clarifies that it is important to understand what
those affected would view as effective remedy, in addition to the business enterprise’s
own view.31
29
http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx, see chapter IX.
The examples are among those listed in the publication “Rule-of-law tools for post-conflict states –
reparations programmes”, OHCHR 2008, p- 7-8.
31
OHCHR Interpretive Guide, p. 64.
30
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PAGE 12
As described in the Manual, it appears that many of the possible outcomes and
remedies offered by the Porgera remediation framework are “rights-compatible”,
within the understanding above. However, efforts should be made to ensure that the list
of possible remedies be comprehensive in terms of corresponding to the substantive
elements of remedy under international human rights standards, and as reflected in the
Guiding Principles.
In terms of the allegations made by MWC about the procedural and substantive
aspects of effective remedy, it appears that there may be significant differences
between what is stipulated in the Manual, and what is alleged about the practical
application of the programme. OHCHR refers to what was said above in relation to the
other procedural allegations, and recommends that Barrick take appropriate steps to
ensure that the framework is implemented as stipulated in the Manual and in
accordance with the Guiding Principles, and that the question of the remedies offered to
claimants be included in a possible independent investigation. As mentioned above, the
remedy offered should be agreed with the claimant based on their wishes, and be in line
with what is considered a culturally acceptable form of civil or mediated remedy for
violations of the same nature, i.e. rape and sexual violence. The consideration of this
issue is separate from the question of any possible criminal liability and accountability.
A claimant’s decision to accept a remedy package through the remediation framework
should have no bearing on her ability to initiate or participate in any future criminal
proceedings that may be brought against the perpetrators or the company.
Allegations concerning selective stakeholder engagement
According to MWC, the alleged flaws in the Porgera remediation programme
could have been avoided “if Barrick had been willing to engage core local and
international stakeholders in the design and implementation of the framework. In
particular Barrick explicitly excluded from consultation the leadership of a grass roots
human rights organization in Porgera, the Akali Tange Association (ATA), and the
Porgera Landowners Association (PLOA), which represents the landowners in the mine
lease area.”32
For its part, Barrick referred to the “extensive consultation process” that was
undertaken in the process of setting up the programme, and refers to concerns about the
good faith and integrity of the two specific organizations named by MWC. In this
regard, Barrick referred to the 2011 report by Human Rights Watch that led to the
establishment of the Porgera remediation programme, and which is critical of PLOA.
Barrick’s position on this point appears to be supported by the letter from
Human Rights Watch of 5 April 2013 , which states that Human Rights Watch tried not
to work with PLOA “because of serious concerns about the integrity and legitimacy of
the organization’s leadership”. Human Rights Watch’s letter also says that “while we
do not necessarily share the views of either [Mining Watch Canada or Barrick]…we
think that critiques about Barrick’s refusal to work with these two groups are
misguided and do not reflect the complexity of the situation.”
According to Barrick, both ATA and PLOA had an opportunity in 2012 to
review the Framework and raise awareness of it. Barrick also referred to advice
32
MWC letter, 19 March 2013.
29
The Porgera Joint Venture
PAGE 13
received from (unnamed) “local specialists”, who counselled against including such
groups on gender related grounds.
The Guiding Principles require that every effort be made to consult with all
relevant stakeholders, particularly those directly impacted by the company’s
operations. Guiding Principle 31(h) stipulates that engaging with affected stakeholder
groups about the design and performance of an operational-level grievance mechanism
can help ensure that it meets their needs, that they will use it in practice, and that there
is a shared interest in ensuring its success.
The situation on the ground in the Porgera valley is clearly complex, including
when it comes to deciding who most legitimately can be said to represent or speak on
behalf of the victims of sexual abuse. These two organizations were among those who
consistently raised concerns about sexual abuse from an early stage. At the same time,
doubts have been raised, including by Human Rights Watch, as to the legitimacy and
role of these two organizations. Given this context, and the fact that both organizations
had an opportunity to review the framework, not directly involving the two
organizations in the development of the Porgera remediation framework by itself would
not necessarily render the programme flawed and in breach of GP 31.
30
However, the antagonistic relationship between Barrick and the two
organizations is likely not in the best interest of the victims of sexual abuse. As such, it
is recommended that efforts be made to mediate the situation.
OHCHR
July 2013
************************
Remedy Framework
Appendix B
Letter from Human Rights Watch
to UN High Commissioner for
Human Rights
31
The Porgera Joint Venture
350 Fifth Avenue, 34th Floor
New York, NY 10118-3299
Tel:
212-290-4700
Fax:
212-736-1300 ; 917-591-3452
Kenneth Roth, Executive Director
Michele Alexander, Deputy Executive Director, Development
and Global initiatives
Carroll Bogert, Deputy Executive Director, External
Relations
Jan Egeland, Europe Director and Deputy Executive
Director
Iain Levine, Deputy Executive Director, Program
Chuck Lustig, Deputy Executive Director, Operations
Walid Ayoub, Information Technology Director
Emma Daly, Communications Director
Barbara Guglielmo, Finance and Administration Director
Peggy Hicks, Global Advocacy Director
Babatunde Olugboji, Deputy Program Director
Dinah PoKempner, General Counsel
Tom Porteous, Deputy Program Director
James Ross, Legal and Policy Director
Joe Saunders, Deputy Program Director
Frances Sinha, Human Resources Director
Program Directors
Brad Adams, Asia
Joseph Amon, Health and Human Rights
Daniel Bekele, Africa
John Biaggi, International Film Festival
Peter Bouckaert, Emergencies
Zama Coursen-Neff, Children’s Rights
Richard Dicker, International Justice
Bill Frelick, Refugee Policy
Arvind Ganesan, Business and Human Rights
Liesl Gerntholtz, Women’s Rights
Steve Goose, Arms
Alison Parker, United States
Graeme Reid, Lesbian, Gay, Bisexual and Transgender Rights
José Miguel Vivanco, Americas
Sarah Leah Whitson, Middle East and North Africa
Hugh Williamson, Europe and Central Asia
Advocacy Directors
32
Philippe Bolopion, United Nations
Kanae Doi, Japan
Jean-Marie Fardeau, France
Meenakshi Ganguly, South Asia
Cameron Jacobs, South Africa
Lotte Leicht, European Union
Tom Malinowski, Washington DC
David Mepham, United Kingdom
Wenzel Michalski, Germany
Juliette de Rivero, Geneva
Board of Directors
James F. Hoge, Jr., Chair
Susan Manilow, Vice-Chair
Joel Motley, Vice-Chair
Sid Sheinberg, Vice-Chair
John J. Studzinski, Vice-Chair
Hassan Elmasry, Treasurer
Bruce Rabb, Secretary
Karen Ackman
Jorge Castañeda
Tony Elliott
Michael G. Fisch
Michael E. Gellert
Hina Jilani
Betsy Karel
Wendy Keys
Robert Kissane
Kimberly Marteau Emerson
Oki Matsumoto
Barry Meyer
Aoife O’Brien
Joan R. Platt
Amy Rao
Neil Rimer
Victoria Riskin
Amy L. Robbins
Graham Robeson
Shelley Rubin
Kevin P. Ryan
Ambassador Robin Sanders
Jean-Louis Servan-Schreiber
Javier Solana
Siri Stolt-Nielsen
Darian W. Swig
John R. Taylor
Marie Warburg
Catherine Zennström
Jane Olson, Chair (2004-2010)
Jonathan F. Fanton, Chair (1998-2003)
AMSTERDAM · BEIRUT · BERLIN · BRUSSELS · CHICAGO · GENEVA · JOHANNESBURG · LONDON · LOS ANGELES · MOSCOW · NAIROBI · NEW YORK · PARIS ·
SAN FRANCISCO - TOKYO · TORONTO · WASHINGTON - ZURICH
Remedy Framework
33
The Porgera Joint Venture
34
Remedy Framework
35
The Porgera Joint Venture
36
Remedy Framework
37
The Porgera Joint Venture
Appendix C
Letter from Ms. Ume Wainetti
to UN High Commissioner
for Human Rights
38
Remedy Framework
Ume Wainetti
PO Box 1501,
Port Moresby, NCD,
Papua New Guinea
Ms. Navanethem Pillay
UN High Commissioner for Human Rights
Office of the United Nations High Commissioner for Human Rights (OHCHR)
Palais Wilson
52 rue des Paquis
CH-1201 Geneva, Switzerland
Dear Commissioner Pillay:
Abuse by Barrick Gold of non-judicial grievance mechanism for victims of rape by security
guards at Porgera Joint Venture mine in Papua New Guinea.
I am Ume Wainetti, the National Convenor of the Papua New Guinea Family And Sexual Violence
Action Committee (FSVAC), and I have worked in the field of violence against women in Papua New
Guinea for many years. I have participated in the process that developed the Porgera remedial
framework and was later invited to be a member of the Review Panel of the OLGETA MERI IGAT
RAITS program.
It is unfortunate that Human Rights Activists like Dr Catherine Coumans whom I met in Port
Moresby at Holiday Inn Hotel on 11 March 2013, talked about the rights of women at Porgera Valley
knowing full-well that such rights cannot be fully realized at present because of cultural issues and the
attitudes of men.
The Survivors of the Porgera abuses had maintained a silence on the abuses, because in PNG women
are blamed for whatever happens to them, they are told that they should be more careful and also in
PNG communal rights are more important than individual rights, so these women maintain their
silence to avoid tribal fights and other conflicts that would eventuate should their families, especially
if they were married to avoid husbands knowing. The fear that was expressed to us at the time in by
senior women on the ground was evident enough that we either go along with local womens’ advice
or we forget the remedial program.
We, the Papua New Guinea women who are involved in the implementation of the remedial
framework, decided this and advised Barrick accordingly, that it was in the best interest of the
survivors’, the CAT Team and the leaders of the Porgera Women’s Association not to advertise the
program. Maria Kensary, the leader of the Porgera District Womens Association, who speaks both
Ipili and Engan, was asked to interpret. She was also the woman leader who privately organized
women to have the first consultations meetings with the international human rights advocates. Flyers,
reports and documents were not to be given out to to women because of literacy problems, and the
risk they would be seen by their men. These things were all done to maintain confidentiality and to
safe guard the survivors.
There are men’s landowners associations such as Akali Tange Association and Porgera Landowners
Associations who want to get involved. These associations are male dominated and would not reflect
the interest of the women. I am glad that these men reported the abuses inflicted by Porgera mine
employees to but who holds the land owners responsible for the abuses that they commit in their
communities to women and girls and especially in their families? This is seen all over PNG in major
project areas. Women in Papua New Guinea generally do not trust landowners as they are worse
perpetrators of abuse against women in this country. I have yet to come across a landowner
association that has consciously provided for women and children. This is Papua New Guinea and
39
The Porgera Joint Venture
especially when the women are from Porgera - If cash or pigs were given to women, this will be taken
and shared by their families, especially by male relatives. We would also witness a lot more abuse of
the women so that men get access to the cash. It is not wise in this particular situation to just hand
cash to survivors. That is why other options were considered. Women will always be at risks from the
security men at the mine if they go there, so when we considered the remedies it was with the hope
that the women would be encouraged to go into income generating activities and to empower them to
improve not just their own lives but that of their families and stay away from doing illegal mining and
keep away from that place. We hope that women can be encouraged to come forward to participate
instead of going to court because in this country court fees are quite high and it takes forever even if
you do have the resources.
I believe that for all concerned we should give this process a chance to run over a period of 18-24
months before assessing its success and failures.
I would be happy to talk to you about any of this as well.
Kind regards,
Ume Wainetti
National Convenor
Family Sexual Violence Action Committee
Papua New Guinea
40
Remedy Framework
Appendix D
Letter from Dame Carol Kidu
to UN High Commissioner
for Human Rights
41
The Porgera Joint Venture
DAME Carol Anne KIDU, Dr (Hon)
P.O Box 179, Konedobu,
National Capital District
Papua New Guinea
24 March 2013
Ms. Navanethem Pillay
UN High Commissioner for Human Rights
Office of the United Nations High Commissioner for Human Rights (OHCHR)
Palais Wilson
52 rue des Paquis
CH-1201 Geneva, Switzerland
Dear Commissioner Pillay:
I am a member of the review panel for the Porgera Remediation program that was put in place by Barrick Gold
in response to the violence against and rapes of women by company security personnel. The review panel’s task
is to deliberate on any Appeals that are lodged against the decisions made by the Independent Expert (a former
Chief Magistrate in Papua New Guinea). I am also involved in preparation of the community programming
component of the reparation package that will follow the assessment of claims by individual victims.
In these capacities and as a human rights advocate myself, I am supportive of the program and believe that the
approach adopted is a positive one that is appropriate given the complex nature of the issues and location.
42
Confidentiality for the victims has been paramount in the approach for the first stage of the program which is
dealing with individual victims. The second stage is community engagement involving personal empowerment
programs and human rights/women’s rights community conversations. It appears that this has been interpreted
as lack of transparency by outside observers. It was in fact the group of internal expert advisers at program
design stage and the Claims Assessment Team (mature, highly experienced Papua New Guinean women) who
insisted on confidentiality and opposed any media/public announcements at the commencement of the program
by Barrick. This decision was made in consultation with women on the ground in Porgera.
The second stage is a community program involving personal empowerment programs and human
rights/women’s rights community conversations.
I am concerned that his matter is being treated as a publicity issues by people oversees who have limited
understanding of the local context and have chosen to impose their interpretation of events on the ground. Noone in the Porgera Remediation Program team has ever claimed to have a perfect solution but everyone in the
team has deep concern for the victims and their communities.
I fear that the strict legal response could result in the victims becoming pawns in other people’s and
organisation’s agendas and the “culturally appropriate” response as also advocated by Mine Watch Canada
contravenes evolving PNG Government policy and also the recommendations of the recent global Commission
on the Status of Women (CSW) recommendations on gender based violence. In a “culturally appropriate”
response the victims’ rights are rarely paramount. Male relatives are often the beneficiaries.
I submit this statement because of my concern about Mine Watch Canada’s letter to the United Nations High
Commissioner for Human Rights.
CAROL KIDU DBE Dr (Hons)
Recipient 2012 Pacific Regional Rights Award
Recipient Republic of France Legion D’Honeur for commitment to rights of marginalised peoples
Remedy Framework
Appendix E
BSR’s Conclusion on
Waiver Provisions Under
UNGP 29
43
The Porgera Joint Venture
BSR Mid-Program Review: Settlement Agreement / Legal Waiver
As part of BSR’s mid-program review of the Porgera Remediation Framework (Remediation
Framework), BSR assessed the settlement agreement and legal waiver that claimants are
required to sign as a condition of receiving a remedy award.
BSR’s assessment is that the inclusion of a waiver as a condition of participation in a remedy
program is inconsistent with Principle 29 of the UN Guiding Principles on Business and Human
Rights (GP 29). However, BSR also believes that the inclusion of a waiver as a condition of a
remedy award is compatible with GP 29, provided that the following legitimacy and proportionality
criteria are met:
1. The scope of the waiver is proportionate and linked to the harm suffered, and is not a
carte blanche exclusion of liability.
2. The quantum of remedy aligns with or exceeds civil judicial precedents in Papua New
Guinea, whether or not the remedy is monetary or non-monetary in nature.
3. The claimant has sufficient capacity to understand the content and implications of the
waiver.
44
The Remediation Framework does not require claimants to sign a waiver as a condition of having
their claims assessed. It does require claimants as a condition of receiving a remedy award, to
sign a waiver of their legal rights to pursue further judicial action against Barrick for the same
claim giving rise to the remedy. The inclusion of the waiver allows Barrick to issue a formal
apology—an important component of remediating human rights impacts—at receipt of the remedy
and reduces the threshold for evidence in relation to legitimate claims.
In its original form, this waiver stated that:
“…the claimant agrees that she will not pursue or participate in any legal action
against the PJV, PRFA or Barrick in or outside PNG. PRFA and Barrick will be
able to rely on the agreement as a bar to any legal proceedings which may be
brought by the claimant in breach of the agreement.”
Following recommendations from various international stakeholders and BSR, Barrick revised the
scope and language of the waiver and it currently states that:
“…the claimant agrees that she will not pursue any claim or compensation, or take
any civil legal action that relates in any way to the event giving rise to the claim
against Porgera Joint Venture, PRFA or Barrick in Papua New Guinea or in any
other jurisdiction. This expressly excludes any criminal action that may be brought
by any state, governmental or international entity.”
BSR applauds Barrick’s decision to revise the language of the waiver to limit it solely to the harm
suffered and avoid any carte blanche exclusion of liability. As a result, we believe it is now less
likely that the waiver would be interpreted by the claimant as purporting to bar them from pursuing
legal action against the PJV, PRFA or Barrick for any other harm/violations within or outside of
the jurisdiction of PNG. Further, the express exclusion in the new version of any bar on the
www.bsr.org
Remedy Framework
victim’s right to pursue criminal proceedings against the individual perpetrator/s, is also wellaligned to GP 29.
However, it is important to recognize that there is still a risk that claimants will lack the requisite
capacity to understand their legal rights and the ramifications of the waiver. Irrespective of its
scope and specificity, the waiver could be seen to inadvertently function as an indirect ‘deterrent’
to victims to pursue remedies for any other violations, contrary to the spirit of GP 29. Not all
claimants may understand the full implications of signing the waiver when doing so.
It is BSR’s assessment that claimant capacity plays a significant role in the legitimacy of the
waiver, underscoring the need for continued engagement and capacity building through
independent legal advisors as part of the Remediation Framework. The Framework’s design has
provisions that allow for third party advisors to attend any meetings, funding for independent legal
assistance, and for an independent legal advisor to provide advice funded by a trust. It is critical
to ensure that these provisions are used by claimants.
45
The Porgera Joint Venture
Appendix F
Third party legal review:
Alignment of Porgera Remedy
Framework and UNGP 31
46
Remedy Framework
Elise Groulx-Diggs, Esq., Ad.E, LL.M
Attorney at Law
Associate Tenant at Doughty Street Chambers (London, UK)
BI for Business Integrity & Partners LLC
Avocate & Barrister-Solicitor (Québec, Canada); Avocate à la Cour (Paris-France); Legal Consultant New York State
(not licensed in Washington, DC)
Accredited Mediator/ Médiatrice accréditée
425 Massachusetts Avenue NW, Suite 413, Washington, District of Columbia, USA, 20001
[email protected] Tel: +1-202-827-8277 Mobile: +1-202-577-3760
________________________________________________________________________________________________
Washington, Tuesday November 25 2014
1. Mandate
Prepare a legal opinion assessing the institutional and legal design of the Olgeta Meri
Remediation Framework, established (i) to provide reparations to individual women
victims who claim they were subjected to rape and violence by security guards around the
Porgera gold mining project and (ii) to support community-wide projects designed to
reduce the prevalence of violence against women generally and support all women at risk
in the Porgera valley.
Specifically, assess whether the design of the Individual Reparations Program meets the
criteria for effective remedy outlined in UN Guiding Principle 31, contained in the
“Access to Remedy” chapter of the UN Guiding Principles on Business and Human
Rights (UNGPs).
The mandate is to provide an opinion only on design issues. To provide an informed
opinion, however, a preliminary factual review has been conducted. This review was
limited to documents available publicly on the Barrick web site, factual information
provided by the company and reports issued in 2010-2011 by Human Rights Watch.
2. Individual Reparations Program and UNGP 31
UN Guiding Principle 31 articulates the basic principles of legitimacy, transparency,
equity, fairness and predictability that should guide the design of any remediation
framework.
As the Commentary to Principle 31 points out, “a grievance mechanism can only serve its
purpose if the people it is intended to serve know about it, trust it and are able to use it.”
2.1 Strong Institutional Platform – Independent Entity: A key design strength of the
Olgeta Meri framework is the establishment of an independent non-profit entity, PRF
Association Inc, to manage remediation programs and operate the Individual Reparations
program, with advice from external experts. In my opinion, this institution was designed
to operate at arm’s length from Barrick and Porgera Joint Venture and to work closely
with recognized experts on women’s rights and human rights in the PNG Highlands.
1
47
The Porgera Joint Venture
Elise Groulx-Diggs, Esq., Ad.E, LL.M
Attorney at Law
Associate Tenant at Doughty Street Chambers (London, UK)
BI for Business Integrity & Partners LLC
Avocate & Barrister-Solicitor (Québec, Canada); Avocate à la Cour (Paris-France); Legal Consultant New York State
(not licensed in Washington, DC)
Accredited Mediator/ Médiatrice accréditée
425 Massachusetts Avenue NW, Suite 413, Washington, District of Columbia, USA, 20001
[email protected] Tel: +1-202-827-8277 Mobile: +1-202-577-3760
________________________________________________________________________________________________
There are several institutional “fire walls” that are designed to protect the Association’s
independence. Here is a summary overview.
Financial Management: Funding originates from the company but the funds are held,
managed and released to the Association by an independent accounting firm in Port
Moresby, a city on the coast far from the Porgera Valley. The firm handles audit and
financial control functions. While company funding can certainly be seen as a design
weakness, this may have been the only way to offer prompt remedy to women claimants.
Moreover a check-and-balance system was put in place to reduce the risk of financial
pressure from the company on Association management.
48
Management Committee & Chairperson: The Association is governed by a management
committee "the Committee" composed mainly of independent professional experts.
Barrick has one representative sitting on the Committee, which in turn elects a
Chairperson.
Administrator: the Committee selects an independent administrator to manage the
proprams.
Complaint Assessment Team: the team is composed of independent experts and manages
the complaints process, reporting to the administrator and the board.
Reparations Awards & Appeals: All reparations are awarded by an independent expert
contracted at arms- length by the Association. The same applies to appeals panels. The
Barrick Management Committee member abstains from any deliberations of the
Committee about individual awards.
The intent of this design is to ensure the independence of the Association, the teams
processing claims and the experts proposing awards under the Individual Reparations
Program.
2.2 Fundamental Design Strength – Two Equal Parties: The Association and its
Individual Reparation Program are both designed to treat women claimants and the
company as parties on equal footing or with equal standing during the process of
complaints assessment and reparations awards. This is fundamental to meeting standards
of equity, fairness and natural justice.
2.3 Overview of Eight Criteria in UN Guiding Principle 31: Here is an overview of
the design of the Individual Reparations Program using the eight criteria of UNGP 31:
2
Remedy Framework
Elise Groulx-Diggs, Esq., Ad.E, LL.M
Attorney at Law
Associate Tenant at Doughty Street Chambers (London, UK)
BI for Business Integrity & Partners LLC
Avocate & Barrister-Solicitor (Québec, Canada); Avocate à la Cour (Paris-France); Legal Consultant New York State
(not licensed in Washington, DC)
Accredited Mediator/ Médiatrice accréditée
425 Massachusetts Avenue NW, Suite 413, Washington, District of Columbia, USA, 20001
[email protected] Tel: +1-202-827-8277 Mobile: +1-202-577-3760
________________________________________________________________________________________________
UNGP Criterion
Individual Reparations Program
•
Legitimate
•
•
•
•
•
•
•
•
Accessible
•
•
•
•
•
•
•
•
Predictable
•
•
•
Equitable
•
•
•
•
Independent entity (PRFA) – platform for building trust &
acceptance;
Independent experts – respected in PNG;
Complaint assessment team or CAT is independent – has
knowledge of women’s issues;
Design of grievance process appears fair – intended to build trust;
Appearance of “due process”;
Company and women claimants are parties on equal footing to
each reparation proceeding;
Process was designed in consultation with experts, stakeholders,
community, etc;
Process was continually adjusted based on stakeholders’
feedback;
137 cases and 120 settlements – one indicator of use and
acceptance of process by many of the alleged women victims.
Design of process favours early/easy access;
Assistance to claimants filing grievances;
Local access to offices & CAT;
Privacy of alleged victims – to ensure reduced threat of
retaliation;
Legal representation – from the early stage;
3rd parties (family, friends, women advocates);
Translation services offered;
137 cases – volume of complaints is one indicator of access.
Design of process favors predictability;
Overview of process offered to claimants at start – consultation at
each stage;
Clear stages: time frames of each steps is clear and certainty to
get a decision at the end.
Independent entity (PRF Association) – key to “due process” and
to give an appearance of fairness;
Independent experts & CATs – also key to design ensuring fair
process;
“Free” consent – company and claimants are parties on equal
footing to each reparation proceeding, throughout the process;
“Free consent – ensured by providing legal representation &
gives bargaining power to claimants;
3
49
The Porgera Joint Venture
Elise Groulx-Diggs, Esq., Ad.E, LL.M
Attorney at Law
Associate Tenant at Doughty Street Chambers (London, UK)
BI for Business Integrity & Partners LLC
Avocate & Barrister-Solicitor (Québec, Canada); Avocate à la Cour (Paris-France); Legal Consultant New York State
(not licensed in Washington, DC)
Accredited Mediator/ Médiatrice accréditée
425 Massachusetts Avenue NW, Suite 413, Washington, District of Columbia, USA, 20001
[email protected] Tel: +1-202-827-8277 Mobile: +1-202-577-3760
________________________________________________________________________________________________
•
•
•
•
Transparent
50
Rights-compatible
•
•
•
•
•
•
•
•
•
Legal counsel – selected by claimant or external referral; in-house
counsel of PRFA present at all stages of complaints process;
Reparations awards according to benchmarks;
“Informed” consent – expert assistance, external women’s
experts;
120 voluntary settlements – one indicator of claimants’
agreement.
Program info disseminated inside women’s groups;
Communication at each stage of process;
Exception to protect privacy and confidentiality;
Confidentiality of settlements occurred in certain cases to protect
alleged women victims who felt they could be subject to
retaliation by males in authority.
Individual Reparations Program is designed to ensure access to
remedy;
Program goal is designed to strengthen women’s rights;
Reparations Program may give access to remedy not available via
the official court system;
Implementation of community projects to reduce violence against
women;
Planning and providing training of Asset Protection Department
(APD) security guards in human rights.
Continuous Learning
•
See “Engagement” below.
Engagement
Dialogue
•
•
Consultation at design stage with stakeholders and experts;
Consultation and changes to process – with claimants,
stakeholders, experts;
Awards based on dialogue with claimants & their representatives;
Existence of an appeal process.
•
•
2.4 Conclusion: Based on this overview, my opinion is that this Framework is aligned
with the eight criteria articulated in UNGP 31.
4
Remedy Framework
Elise Groulx-Diggs, Esq., Ad.E, LL.M
Attorney at Law
Associate Tenant at Doughty Street Chambers (London, UK)
BI for Business Integrity & Partners LLC
Avocate & Barrister-Solicitor (Québec, Canada); Avocate à la Cour (Paris-France); Legal Consultant New York State
(not licensed in Washington, DC)
Accredited Mediator/ Médiatrice accréditée
425 Massachusetts Avenue NW, Suite 413, Washington, District of Columbia, USA, 20001
[email protected] Tel: +1-202-827-8277 Mobile: +1-202-577-3760
________________________________________________________________________________________________
3. Core Legal Principles
Fundamental legal principles of fairness and equity are embedded in the UN Guiding
Principle 31. The principles exist independently and have the force of law in Common
Law countries and in the legal regimes prevailing in Civil Law countries.
This body of “hard law” can be raised in litigation on behalf of plaintiffs, including those
who refused reparations awards and possibly those contesting awards after acceptance, or
those who opted out during the remediation process.
One key test of fairness found in the Common Law tradition but also in Civil Law
countries (even though phrased differently) is the concept of “free and informed consent”
of alleged victims both to the process and to outcomes (reparations packages awarded).
This simple phrase can expand to include consideration of a range of issues:
• Coercion and deception (which erode “free consent”)
• Unequal bargaining power (which does the same)
• Legal representation
• Knowledge and expert opinion (which supports “informed consent”)
• Access to information (which does the same)
• Translation and understanding in one’s mother tongue
The actual standard has been defined and interpreted in a variety of ways in both
Common Law and statutory law. A full review of the jurisprudence and case law is
beyond the scope of this opinion.
In my opinion, the design of the Olgeta Meri remediation framework respects the core
principle of free and informed consent.
5
51
The Porgera Joint Venture
Elise Groulx-Diggs, Esq., Ad.E, LL.M
Attorney at Law
Associate Tenant at Doughty Street Chambers (London, UK)
BI for Business Integrity & Partners LLC
Avocate & Barrister-Solicitor (Québec, Canada); Avocate à la Cour (Paris-France); Legal Consultant New York State
(not licensed in Washington, DC)
Accredited Mediator/ Médiatrice accréditée
425 Massachusetts Avenue NW, Suite 413, Washington, District of Columbia, USA, 20001
[email protected] Tel: +1-202-827-8277 Mobile: +1-202-577-3760
________________________________________________________________________________________________
4. Voices of the Women of Porgera
The primary focus of this design assessment, forming the base of my legal opinion, has
been on measures that the company has taken to structure the remediation framework in
line with the UN Guiding Principles. But this analysis is just a part of the story.
All will agree that the design of the Olgeta Meri Framework cannot be assessed only
from the company’s perspective. There are key questions about the design that must be
answered in consultation with the women who have filed grievances (“complainants”)
and their representatives. These are questions about the perceived legitimacy, fairness
and transparency of the process.
52
As mentioned earlier, I have not had an opportunity to listen to the alleged women
victims and their representatives and to assess how they have lived the whole experience
and perceived the complaints process.
Until further independent review and analysis, including interviews, are conducted with
the women and their representatives, as well as other stakeholders, many questions will
remain unanswered.
5. Some Questions to be Answered
The company has announced that it intends to set up an independent process to review
the implementation phase of the Olgeta Meri remediation framework and its
effectiveness.
It is suggested that the review include several questions that are “still to be answered”
about the remediation process.
Grievances and PNG Highlands Culture: Do women in the Porgera Valley (and the
PNG Highlands) expect to be attacked by men on a regular basis? Which men? Do they
consider these attacks commonplace? Or do they consider them to amount to truly
“criminal acts”?
Understanding of “Rights”: Do women in the Porgera Valley understand the concept
and language of “human rights”? Do women understand their rights and how to exercise
them?
6
Remedy Framework
Elise Groulx-Diggs, Esq., Ad.E, LL.M
Attorney at Law
Associate Tenant at Doughty Street Chambers (London, UK)
BI for Business Integrity & Partners LLC
Avocate & Barrister-Solicitor (Québec, Canada); Avocate à la Cour (Paris-France); Legal Consultant New York State
(not licensed in Washington, DC)
Accredited Mediator/ Médiatrice accréditée
425 Massachusetts Avenue NW, Suite 413, Washington, District of Columbia, USA, 20001
[email protected] Tel: +1-202-827-8277 Mobile: +1-202-577-3760
________________________________________________________________________________________________
Women’s Advocates: What opinions do women’s leaders and advocates in the Porgera
Valley have about (i) the grievances (ii) access to remedy (iii) the Olgeta Meri
remediation process?
Contribution of Olgeta Meri: What difference has the Individual Reparations Program
made to women living under the threat of violence in the Porgera Valley? Should such
institutions be established on a permanent basis?
Many more questions should be asked in the review process. An effort has been made to
keep this list short and simple. It is suggested that agreements on the answers will not be
reached easily.
Open debate among all concerned stakeholders about these questions is healthy and
necessary to drive change towards a more peaceful state of affairs and greater respect for
the rule of law in the Porgera Valley.
6. Conclusion
I have been asked to assess the legal and institutional design of the Olgeta Meri
Remediation Framework and in particular of the Individual Reparation Program. My
opinion is that the Reparations Program is aligned with the eight criteria articulated in
UNGP 31 and with basic legal principles of fairness and equity.
It is important to reiterate, nevertheless, that institutional design is less than half the story
of any remediation process. I have stressed that we must also listen carefully to the voices
of victims and answer many questions concerning the implementation of the Program.
Behind the remediation process in the Porgera Valley are real women who are claiming
to be victims of serious criminal acts that have gone unpunished. Assessing how to bring
a proper remedy for these women is indeed a challenging task. We can expect a debate on
this issue to be intense and emotional but it will be essential to bring some type of
closure.
Elise Groulx Diggs
Attorney at law
Avocate à la Cour
7
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