The extractives industries (e.g. mining, oil & gas, forestry) offer the potential for job creation and economic growth, which are important elements in promoting an environment conducive to the enjoyment of human rights. However, extractives industries projects and activities are also frequently associated with adverse human rights impacts. The extractives sector can have adverse impacts on a broad array of human rights, due to, for example: resettlement of communities without adequate consultation and compensation; environmental degradation; deprivation of livelihood and access to clean water; forced labour; sexual and gender-based violence; and even extrajudicial killings by security forces protecting company assets, with some cases meeting the legal definition of corporate complicity.
The potential impact of the sector depends significantly on how States and companies operate. Importantly, States have a legal obligation to protect human rights in the context of the activities of the extractives sector. They often enter into contracts with foreign investors (so called “state-investor contracts”) for the exploration and extraction of natural resources. These contracts set out the terms of engagement and responsibilities of the respective parties. Given the potential for adverse human rights impacts, it is crucial that human rights considerations are included in the negotiation and content of such contracts (UN Principles For Responsible Contracts).
+ Read more
States have taken action at both supranational and national levels. For example, in May 2017, the European Parliament and the Council of Europe adopted a Regulation regarding supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold (so called “conflict minerals”) originating from conflict-affected and high-risk areas. Furthermore, the EU issued a directive in 2013 whereby companies making payments over €100,000 to governments from extractives or logging activities must disclose this fact in their annual financial statements. At the global level, since 2000, states and regional integration organisations have been able to join the Kimberly Process, which is an international certification scheme, underpinned by a UN mandate, to regulate trade in rough diamonds and prevent the flow of conflict diamonds. A further global standard is the Extractive Industries Transparency Initiative (EITI), which promotes and facilitates revenue transparency by governments and companies. Countries that sign up to EITI must publish what they received from extractives industries companies, and companies must publish what they pay. In this way, citizens can hold their governments accountable for the accurate accounting of public revenue from the extractives industries. The Africa Mining Vision (AMV) was adopted by Heads of State at the 2009 African Union Summit to promote transparent, equitable and optimal exploitation of mineral resources. The AMV draws on trends and governance practices from other states, to make recommendations to African mining companies and mineral-rich countries. There have also been initiatives at the national level to enhance extractives industries governance. For example, in the US, the so-called “Conflict Minerals Rule” which aimed to stem labour and human rights abuse, and the financing of armed conflict from trade in conflict minerals by requiring companies using those minerals to assess whether they originated from the Democratic Republic of Congo or an adjoining country. If found, companies were required to conduct due diligence of their supply chain to ensure that their purchases have not financed conflict in the region. (Public statement on the Conflict Minerals Rule).
In December 2017, the International Corporate Accountability Roundtable (ICAR) and the Due Process of Law Foundation (DPLF) launched a new thematic guidance document on Extractives and National Action Plans (NAPs) on Business and Human Rights.
In terms of industry initiatives and organisations, companies can join organisations such as the International Council on Mining and Minerals (ICMM), and the International Petroleum Industry Environmental Conservation Association (IPIECA), which provide guidance and require members to adhere to best-practice frameworks for sustainable development in the extractives industries.
With an eye towards gender implications, in 2019, the Danish Institute for Human Rights published a report which examines key challenges, as well as good practice opportunities for practitioners working in and with the extractive industries, on how a gender-responsive approach can be embedded in project planning and implementation. In particular, the report explores how strengthened engagement with women can act as a key enabler for human rights due diligence.
The Ford Foundation supported a project that tracks mining operations related to renewable energy and electric vehicles. The Transition Minerals Tracker seeks to improve the human rights practices of companies that produce the minerals vital to the renewable energy and electric vehicles sectors, by shedding light on the key human rights risks in the geographies where they operate, and the human rights policies and practices of the most important companies in this sub-sector.
Extractives sector can make a significant contribution to the economic aspects of development under the 2030 Agenda for Sustainable Development through its potential to contribute to job creation and economic growth (Sustainable Development Goals 8 and 9). However, there are also risks that the activities of this sector presents for SDGs related to environment and climate change (notably SDGs 7, 12, 13, 14 and 15) – all of which have human rights dimensions – as well as for land rights (SDGs 1.4 and 2.3), food security (SDG 2) and health and wellbeing (SDG 3), among other things.
Business’ contribution to many of these goals/sectors is significant. Given that 92% of SDG targets reflect specific provisions of international and regional human rights and labour law, the UNGPs can provide a baseline standard of expected conduct for all businesses in all these areas, thus ensuring that responsible business respects human rights but also, through this, makes a more effective contribution to SDG realisation based on a more holistic understanding of the inter-connectedness of human rights and SDGs.
- REGULATION (EU) 2017/821 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas
- Due Process of Law Foundation (DPLF) and International Corporate Accountability Roundtable (ICAR) (2017) Extractives and National Action Plans (NAPs) on Business and Human Rights
- European Commission – Conflict Minerals Regulation Resource Page
- US Dodd-Frank Act – Section 1502
- China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (CCCMC), Guidelines for Social Responsibility in Outbound Mining Investments, 2014
- OECD (2016), OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas: Third Edition, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264252479-en
- European Commission, Oil and Gas Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights, Shift and IHRB, 2013
- The Danish Institute for Human Rights (DIHR), The International Corporate Accountability Roundtable (ICAR) and The United Nations Children’s Fund (UNICEF) (2015) Children’s Rights in National Action Plans (NAPs) on Business and Human Rights
- Business and Human Rights Resource Centre – Natural Resources
- Extractive Industries Transparency Initiative
- IPIECA website
- IPIECA – Resources for Oil and Gas Industry
- International Council on Minerals and Mining (ICMM)
- ICMM – Resources
- ICMM, “Land Acquisition and Resettlement. Lessons Learned”
- ICMM, “Understanding company-community relations toolkit”
- ICMM, “Indigenous peoples and mining good practice guide”
- ICMM, “Integrating human rights due diligence into corporate risk management processes”
- IPIECA, “Human rights due diligence process: a practical guide to implementation for oil and gas companies”
- Earthworks’ “No Dirty Gold” campaign
- Enough Project’s “Raise Hope for Congo” campaign: “C½onflict minerals”
- Global Witness: “Ending secrecy in oil, gas and mining deals”
- “Publish What You Pay”
- UN, “Principles for Responsible Contracting”
- ILO, “Indigenous and Tribal Peoples’ Rights in Practice”:
- Inter-American Development Bank, “Operational Policy on Indigenous Peoples”:
- International Institute for Environment and Development (IIED), “FPIC and the Extractive Industries: A Guide to Applying the Spirit of Free, Prior and Informed Consent in Industrial Projects”
- IPIECA, “Indigenous Peoples and the Oil and Gas Industry: context, issues and emerging good practice”
- Oxfam America, “Community Consent Index: Oil, Gas and Mining Company Positions on FPIC”
- The Report of the Special Rapporteur on the Rights of Indigenous Peoples, (6 July 2012, UN Doc No A/ HRC/21/47)
- The UN Declaration on the Rights of Indigenous Peoples
- ICMM, “Community Development Toolkit”
- World Resources Institute, “Breaking Ground: Engaging Communities in Extractive and Infrastructure Projects”
- M .K. Wasunna, J. Okanga, G. Kerecha, LISTENING PROJECT Report: Mui Basin, Kitui County. Capturing Community Voices-A First Step towards Informed Dialogue in Kenya’s Extractives Sector. Extractives Baraza (EB) & Aga Khan University, July 2017
- B. Meyersfeld. Empty Promises and the Myth of Mining: Does Mining Lead to Pro-Poor Development? Business and Human Rights Journal, 2(1), 2017, 31-53
- Red Flags. Liability Risks for Companies Operating in High-Risk Zones.
- PRI, Human Rights and the Extractive Industry: Why Engage, Who to Engage, How to Engage, 2015
What National Action Plans say on Extractives sector
Action point 13
Strengthen and monitor the respect for human rights in public procurement
The federal government states that the Working Group on Sustainable Public Procurement of the Interdepartmental Commission for Sustainable Development will examine how to strengthen and optimize the integration of respect for human rights into the purchasing policy of the public authorities. To this end, in consultation with the government and stakeholders concerned, including the sectoral federations, the working group will formulate a series of proposals with particular attention to hazardous sectors such as the apparel industry, the extractives industry etc.
Pillar 1: The State Duty to Protect Human Rights
Strand 1: Training in the Field of Business and Human Rights
Action Point 1.8 (page 43)
The Ministry of Mining will organise talks and/or seminars about the inclusion of human rights standards in the development of mining projects.
Strand 3: Inclusion and Non-Discrimination
Action Point 3.3 (page 48)
The Ministry of Mining will generate the conditions for transiting to an inclusive organisational structure that includes the acknowledgement of respect and diversity in their practices. They will do this carrying out the following actions:
- Talks about business and human rights addressed at key actors in the small, medium and large-scale mining industry.
- Through the participation in Regional Boards and in the National Board for Women and Mining, the development of an action plan will be supported to raise awareness and motivate the different public and private actors involved in the mining industry in subjects such as gender equality. Likewise, the implementation of conditions for women to stay and develop a career in the mining industry and get equal pay will be fostered, as well as the creation of good labour practices and the balance between work, family and personal life.
Strand 9: State Business Enterprises
Action Point 9.3 (page 50)
To strengthen coordination between the Ministries forming part of the Inter-Ministerial Working Group, amplify the impact of this Action Plan, and make known its progress, the Group will carry out the following actions: …
2. Encourage the adoption of policies, statements or codes of conduct by business enterprises and urge the implementation of mechanisms of due diligence.
VIII. FUNDAMENTAL PILLARS
i. Fundamental Pillar 1: The State’s obligation to protect human rights
Strand 2 [Eje nº 2]: Encourage the creation of regulations and strategies that promote respect for human rights in the development of business activities.
- The Ministry of Mines and Energy [Minminas] together with the National Hydrocarbons Agency, the National Mining Agency and the Mining and Energy Planning Unit (UPME) [Unidad de Planeación Minero Energética, UPME] will form and implement the Human Rights and Energy Working Group.
- The Ministry of Mines and Energy [Minminas] will formulate and implement gender guidelines for the mining and energy sector.
- The Ministry of Mines and Energy [Minminas] will implement the lines of action that respond to the public policy on Human Rights in the sector, in coordination with the entities of the mining and energy sector.
- The Ministry of Mines and Energy [Minminas]will build the human rights risk map for the mining and energy sector in prioritised territories.
Introduction [page 4]
“The question of business and human rights was thrust into the public consciousness in the 1990s. With modern business no longer confined by the borders of nation states, production and extraction operations are free to roam in pursuit of the right raw materials, economic conditions and labour.”
Most serious infringements of working conditions [page 16]
“Between 2009 and 2011, there were several cases of large-scale labour exploitation involving up to several hundred workers in the forestry sector (Finding of the Constitutional Court II. ÚS 3436/14 of 19 January 2016 and Finding of the Constitutional Court I. ÚS 3196/12 of 12 August 2014).”
Supply chains and conflict minerals [page 20-21]
“Implements Principles 6 and 7
Increasing attention is being paid to safety conditions at work (e.g. the use of slave and child labour in mining). Risks of this type are particularly serious in areas plagued by armed conflict, which can be attributed to the absence of state authority here. Raw materials imported from geopolitically unstable regions and flashpoints may be used as a source of funding to reconstruct the country and improve the conditions in which its inhabitants live. On the other hand, various groups may exploit slave or child labour in mining operations or in factories, and the proceeds from sales could then be used to pay for weapons and soldiers. The raw materials they have mined and the products they have made are then sold on the global market, often without the buyers knowing their provenance.
This is a problem that needs to be tackled internationally. One solution lies in certification schemes proving the origin of raw materials. The certification authority guarantees that workers’ rights have not been infringed during mining or production. These certificates are issued by state and international organisations on the one hand, and private issuers on the other. Current legislation allows the public sector to take into account or to demand this certification in the course of procurement, in which case it is only necessary to comply with the conditions of transparency, equal treatment and non-discrimination. [Judgment of the EU Court of Justice of 10 May 2012 in European Commission v Kingdom of the Netherlands (C-368/10)]
Current state of play:
- At EU level, a regulation on “conflict minerals” has been adopted in order to standardise procedure in all EU Member States.
- European Commission is working with the OECD to establish criteria for internal control and regulatory mechanisms at businesses.
- Numerous voluntary certification schemes run by states and international organisations on the one hand and the private sector on the other attempt to map out the origin of raw materials and supply chains.
- The Dodd-Frank Act in the US requires a certificate of origin for certain raw materials. This is also relevant to the Czech Republic inasmuch as it also applies to foreign subcontractors.
- Under the new European rules on non-financial reporting, companies will also publish information on their supply chains.
- The Czech Republic was involved in the consultation and approval of the OECD-FAO Guidance for Responsible Agricultural Supply Chains. The Ministry of Industry and Trade and the Ministry of Agriculture will arrange for this Guidance to be published and publicised at their seminars and workshops.
- The Czech Republic was involved in the consultation and approval of OECD recommendations on the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector. The Ministry of Industry and Trade IS now considering how they can best be implemented in the Czech Republic.
- Establish one or more competent bodies responsible for the application, in the Czech Republic, of Regulation (EU) 2017/821 of the European Parliament and of the Council laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas, and notify that body (those bodies) to the European Commission.
Coordinator: Ministry of Trade and Industry
Deadline: 9 December 2017
- In the public sector’s procurement of high-risk products and raw materials, consider giving preference to suppliers participating in recognised certification schemes.
Coordinators: All ministries
Pillar II, Scope and content of the obligation to respect human rights [page 30]
“For businesses, there are three dimensions to respect for human rights: …
- Do not be associated with violations of human rights: This applies to other parties’ activities about which a business knows, on which it has a bearing, and/or which are closely related to its own business, and may encompass:
- Lending for a mining project that permanently damages the environment. …”
The Danish NAP makes no direct reference to extractives.
1 The state obligation to protect human rights
1.3 Activities in the EU [page 17]
“The international interest in raw materials is increasing. Whilst the materials may be used as a resource supporting development, there is also a risk of ambiguities related to the funds received from raw materials and/or the funds being used to support conflicts. The European Commission has made a proposal to establish a due diligence system for the union based on a spontaneous declaration by the responsible importers of certain minerals originating in conflict zones and high-risk areas.
The Commission proposal has taken into consideration both the OECD Guidance for mineral purchasing in conflict zones as well as the OECD and UN guidelines more generally related to responsible supply chain management. The proposal is currently being discussed on the national level. Finland actively participates in the discussion of the proposal in the Council working group.
As for the more general responsible acquisition of raw materials, the new EU accounting directive obliges companies operating in oil, gas, extractive industry and loggers of primary forests to report on the fees paid to governments in connection with the financial statement8. The directive is currently being implemented in Finland.
As a follow-up measure, the working group proposes that
Finland actively participate in the discussion of the proposal for a regulation on conflict minerals and in the discussion for the development of practices for responsible supply chains in the raw material sectors.
Principal responsible party: Ministry for Foreign Affairs, continuous activities.”
3 Expectations towards companies and support services
3.1 Clarification of due diligence [page 26]
WHAT IS SUFFICIENT?
“As a follow-up measure, the working group proposes that • companies, non-governmental organisations and other key stakeholders are invited to a roundtable discussion by branch of activity. For example, the discussion could begin with the forest industry, the consumer goods trade and the textile industry. With the discussions, an attempt shall be made to create a dialogue amongst various stakeholders and to establish the essential risks for each branch of activity as well as sufficient risk management and due diligence.”
I- The State’s Obligation to Protect Human Rights
The National Framework
13. The Role of Public Agencies
The Agence Française de Développement (AFD) [page 28]
… [AFD] also has an exclusion list which prevents it from financing projects that involve … diamond mining activities outside of the Kimberley Process.
- When evaluating extractive industry projects, the AFD ensures that funding recipients comply with the Extractive Industries Transparency Initiative (EITI), without excluding those who respect EITI standards but are not based in EITI countries.
15. Economic Sectors and Human Rights
The Extractive Sector [page 34]
the NAP cites France’s participation in multilateral and european initiatives aiming to strengthen the legal and normative frameworks regulating companies in the extractive sector, in particular in contexts of fragile governance: France participates in the monitoring and contributes to the funding of the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (paragraph 3, p36); France participated in the development and adoption of the OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector (paragraph 4,p36); it played a major role at the EU in negotiations regarding the regulation on conflict minerals and was one of the first European countries to transpose the 26 June 2013 directive imposing obligations of transparency on extractive companies (paragraph 5,p36); and France’s President committed to adhere to the EITI (paragraph 1, p36). This section concludes by indicating that the implementation of the EITI will “contribute to enhancing the transparency of financial flows and tripartite dialogue between the State, business and civil society on the social and environmental impact of extractive activity on the national territory” (paragraph 2, p37).
- France has launched an ambitious process to become an EITI country.
- France raises awareness among French businesses of their due diligence
obligations with respect to mineral supply chains as set out in relevant regulatory
initiatives (the OECD Due Diligence Guidance, the EU Conflict Minerals Regulation and
national law on due diligence).
There is no mention of extractive sectors in the Business and Human Rights Chapter of the Georgian Human Rights NAP.
2.3 Business activity in conflict zones [page 32-33]
The current situation
“An important contribution to these efforts is being made by the deliberations, which Germany is backing, on what are known as ‘conflict minerals’, an intense discussion being conducted within both the OECD and EU frameworks. In 2011, the OECD published a guide to corporate responsibility along supply chains in which minerals from conflict zones are traded and handled. The guide, entitled OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, has also been available in German since 2015. The primary aim of the Guidance is to curb the funding of armed conflicts from the proceeds of trade in raw materials; in addition, compliance with its recommendations would help to prevent serious human rights violations, especially child labour.
The European Commission has presented a proposal for a regulation setting up a Union system for supply chain due diligence self-certification of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas. Based on the aforementioned OECD guide, the Commission’s draft regulation would establish a voluntary undertaking to observe due diligence rules within supply chains when importing the minerals referred to above so as to ensure that proceeds from their sale are not used to fund armed struggles in conflict zones or other high-risk areas. The European Parliament, on the other hand, expressed itself in favour of a binding instrument for downstream operators, that is to say along the whole value chain. A basic compromise has now been reached between the European Parliament, the Council and the European Commission on a binding instrument focused on the upstream area, i.e. the supply chain. Further details will now have to be negotiated in the context of the trialogue conducted by the EU institutions.”
“The Federal Government is pursuing the aim of preventing the use of proceeds from the sale of tin, tantalum and tungsten, of their respective ores and of gold to fund armed struggles in conflict zones and other high-risk areas. It is committed to the establishment of binding due diligence rules, which should be proportionate and should not entail unnecessary red tape, particularly for small and medium-sized enterprises.”
Section 2: Current legislative and Regulatory Framework
Supply chain [page 15]
“The Government supports the proposal by the European Commission for an EU Council Regulation which provides for the establishment of an EU-wide system for supply chain due diligence of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas. The main objective of this proposal is to help reduce the financing of armed groups and security forces through mineral proceeds in conflict-affected and high-risk areas by supporting and further promoting responsible sourcing practices of EU companies. Of course, supply chain diligence is not limited to the extractive industries and areas of conflict.”
Annex 1 – List of additional and ongoing actions to be carried out across Government
EU and Multilateral Efforts to [page 20]
“5. Continue to participate in the Kimberley Process Certification scheme and support the scheme’s stewardship by the European Commission.
6. Support the implementation of the Regulation establishing an EU-wide system for supply chain due diligence of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas.”
Supporting business respect for human rights on conflict-affected areas
Italy recognizes the importance of respecting human rights especially in conflict-affected areas, whereas the promotion of human rights may yet represent a fundamental mean to guarantee peace and security. On this basis, Italy can draw on best practices of awareness raising and training activities with regard to conflict minerals, and in particular the gold sector, in line with the OECD due diligence and relevant EU regulation.
- Further promote the knowledge of the OECD due diligence guidance ‘Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones’ and ‘Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High- Risk Areas’, encouraging and supporting SMEs to follow as well this guidance tools;
Italy’s Updated NAP
III. ITALY’S EXPECTATIONS TOWARDS BUSINESS
In 2017 EU passed the new Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas. The Regulation meets the EU countries commitments to breaking the link between armed conflicts, crimes and illegal exploitation of minerals which often implies serious human rights abuses. EU companies in the supply chain are required to adopt due diligence to ensure they import these minerals and metals from responsible and conflict-free sources only. The new Regulation will take effect on 1 January 2021.
Chapter 2. Action Plan
2. Areas of the NAP
(2) Measures of the Government Promoting Corporate Responsibility to Respect Human Rights
A. Measures Related to Domestic and Global Supply Chains and Promotion of Human Rights Due Diligence Based on the UNGPs
(Existing framework/Measures taken）
… international initiatives, including the Extractive Industries Transparency Initiative and measures against Illegal, Unreported and Unregulated fishing are being implemented, and Japan makes an active contribution to such initiatives.
|CHAPTER TWO: THEMATIC AREAS OF FOCUS
2.1 Land and Natural Resources [Pages 12-13]
The Constitution also guarantees access to information, community empowerment and inclusion in decision-making and benefit sharing from the exploitation of natural resources. Additionally, Kenya has various laws and policies to ensure communities hosting extractives projects benefit through revenues, employment of local people, and utilisation of local goods and services.
The NAP consultations identified the following challenges related to land, natural resource development and business:
4. The Mining Act has not been fully operationalised with regards to the sharing of revenues, effectively denying local communities impacted by the operations of mining companies the rights and protections under the law
6. Lack of sustainable benefits for host communities from the exploitation of natural resources despite the constitutional imperative for equitable sharing of benefits.
2.2. Revenue Transparency [page 15]
Despite the above efforts, the NAP consultations identified several challenges that affect revenue transparency:
3) Lack of transparency in administration and management of revenues from the exploitation of natural resources including from mining and oil and gas activities
2.3. Environmental Protection [Page 15]
There is growing global consciousness on the impacts of business on the environment. The operations of businesses such as extractives, manufacturing and infrastructure could have adverse impacts on the environment leading to illness or death of populations
CHAPTER THREE: POLICY ACTIONS
3.1. Pillar 1: The State Duty to Protect [Page 22]
The Government will:
10) work with stakeholders to develop a natural resource revenue management policy and regulatory framework for administering and managing natural resource revenue paid to host communities. This framework should seek to promote equity, inclusivity and community decision-making and will include training to enhance the capacity of communities to manage their affairs. It will also serve to guide the operationalisation of mining revenue as envisaged by the Mining Act, 2016; […]
The Lithuanian NAP makes no reference to the extractives sector.
Part III – NAP
3. Government’s Response (p.28)
A preliminary diagnosis allows for the identification of the potential risk of negative impacts on human rights that activities in the private sector may have, specifically within … extractive industries …
3.2 A joint work program (pg.31)
- Preparation for the implementation of the European regulation on conflict minerals in Luxembourg;
‘The Mexico NAP does not explicitly address this issue’
The Dutch NAP makes some small references to the extractive sector.
3.1 An active role for the government
The OECD Guidelines Proactive Agenda [page 15]
“[the OECD] is also working with the various interested parties in the extractive sector on a guide to using stakeholder engagement in their CSR policies. … A multi-stakeholder approach to conflict minerals has proved highly successful in preventing funds being channelled into the civil war in the DCR.”
3.3 Clarifying due diligence
Raising companies’ awareness [page 22]
“It is essential for companies to have access to all available information on due diligence. The European Commission has published human rights guidance for three business sectors: ICT companies, oil and gas companies and employment and recruitment agencies.”
2.1 The state as a legislator: The Minerals Acts [page 19]:
In Norway as in other countries, conflicts may arise between commercial activity and indigenous peoples’ rights. Protection of Sami rights is laid down in the Constitution and other legislation, and obligations towards the Sami people follow from international conventions, particularly Article 27 of the International Covenant on Civil and Political Rights and ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries. In Norway, Sami rights are also enshrined in special legislation and through consultation procedures between the public authorities and Sámediggi (the Sami Parliament). As part of its follow-up of ILO Convention 169, Norway is conducting a dialogue with ILO on how the convention is being implemented in Norwegian law, including in the area of mineral resources. In the Official Norwegian Report 2007:13 on legislation pertaining to the Sami, the Sami Rights Commission reviewed measures relating to mineral resources and in legislation that regulates mineral extraction. Some of the commission’s proposals were evaluated in connection with the preparatory work on the Minerals Act. The Act, which replaced five existing acts, entered into force on 1 January 2010. As part of the Government’s follow-up of the report from the Sami Rights Commission, the Ministry of Trade, Industry and Fisheries will evaluate proposals for amendments to the Minerals Act.
2.1: Regulations on country-by-country reporting:
Under the country-by-country reporting regulations, large enterprises that are required to submit accounts, and issuers of financial instruments listed on the stock exchange, in the extractive industry and/or forestry and logging, are required to prepare and publish an annual report on their activities by country and by project.
Pillar I: The state’s duty to protect human rights
1. Regulations relating to business and human rights
Occupational safety and health [page 14]
“The provision of safe and hygienic working conditions to employees is also ensured by the provisions of other laws, including the Construction Law, Atomic Law, and Geological and Mining Law.”
Pillar III: Access to remedies
3. National Labour Inspectorate (PIP): an institution that oversees business and human rights
Supervisory and inspection activities [page 47]
“The National Labour Inspectorate actively supports employers’ involvement in issues concerning safety and working conditions, as well as employee participation, both in its oversight and inspection capacity and in its preventive and promotional activities. These include seminars, conferences, and training meetings with employers involved in permanent workplace safety improvement programmes (enhanced oversight in industrial establishments, permanent inspections in construction, rail infrastructure, forestry, and mining sectors).”
The Slovenian NAP makes no reference to the extractives sector.
South Korea’s NAP makes no reference to extractives.
Guiding Principle 3
“The implementation will be promoted by business and trade unions, general or sectorial, including representative organizations of social economy entities; as well as other institutions such as chambers of commerce, chambers abroad, universities, business schools, etc. of actions that should promote online training and advice and Resolution of queries, coordinated with those carried out in the application of the Spanish Strategy of Corporate Social Responsibility.”
Guiding Principle 7
“The Government will promote the application of the OECD Due Diligence Guide for Supply Chains Responsible for Minerals in Conflict or High Risk Areas.”
Annex: Measures taken [page 22-24]
The State as actor
- “The conduct of companies in relation to armed conflicts is highly relevant to respect for human rights. Sweden has proposed sharper formulations in the draft regulation on responsible trade in minerals from conflict areas that is currently being discussed in the EU. In other words, we consider it should be mandatory for importers from particularly problematic countries to obtain certification. Sweden is carrying out awareness-raising activities on this issue and supports the OECD’s work on how companies are to identify risks in the supply chain and avoid trade in conflict minerals (OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas).
- … Sweden provides support to the Extractive Industries Transparency Initiative (EITI), which works to combat corruption in the mining industry.”
Annex: Measures planned [page 27]
- “The interim report Implementation of the EU’s new accounting directive (Swedish Government Official Reports 2014:22) proposes enhanced transparency regarding payments made by some companies active in the extractive industry and in the logging of natural forests. The provisions will require companies to publish annual reports on payments made to authorities in the countries in which they operate. The aim is to combat corruption.”
Annex: Links [page 30]
“The European Commission has produced a guide to human rights for small and mediumsized enterprises in Swedish, based on the UN Guiding Principles for Business and Human Rights. The Commission has also developed industry-specific guides for extractive industries (oil and gas), temporary-work agencies and the ICT sector. These are available on the Commission website: www.ec.europa.eu”
2 National Action Plan on Business and Human Rights 2020-23
2.1 Pillar 1: state duty to protect
2.1.2 Operational principles: legislative and information policy measures
Guiding Principles 1 to 3
Measure 2: Security and human rights
Switzerland is a member of the Voluntary Principles on Security and Human Rights initiative and contributes to its development. This initiative is targeted at companies in the extractive sector and offers them guidance on maintaining the safety and security of their operations within a framework that ensures respect for human rights, especially when private and/or public security providers are also involved. It is also committed to the application of the Voluntary Principles in the field and works to expand membership of the initiative.
Measure 7: Reduction in human rights risks associated with gold extraction and trading
At the end of 2018, the Federal Council adopted a report setting out a range of measures designed to improve the traceability of gold imported to Switzerland, strengthen multi-stakeholder dialogue and expand development cooperation on responsible gold production.
The measures aim to improve the collection and publication of information on the sources of gold imported in Switzerland, and increase transparency not only regarding the risk assessments conducted by the industry but also regarding its human rights due diligence. The federal government will take steps to promote best practices and examine the possible use of blockchain technologies to improve traceability in the gold industry.
Switzerland will continue to support the implementation of OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and other relevant guidelines. As recommended in the above report, it will explore the possibility of granting the Central Office for Precious Metals Control wider responsibilities, including with respect to transparency on the provenance of gold imported to Switzerland.
|Prevent human rights risks associated with gold extraction and trading.||A number of recommendations in the Federal Council Report on gold trading and human rights have been implemented.||FDFA [Federal Department of Foreign Affairs],
FDF [Federal Department of Finance],
EAER [Federal Department of Economic Affairs, Education and Research],
FDHA [Federal Department of Home Affairs].
Measure 13: Guidelines on human rights due diligence in conflict-affected and high-risk areas
…. Switzerland also supports the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. It is also a member of the multi-stakeholder group that manages the implementation, dissemination and continued development of these guidelines. The OECD Due Diligence Guidance is aimed primarily at companies involved in the extraction and trading of commodities in conflict-affected and high-risk areas, but it also applies to manufacturers of products containing minerals which operate in the downstream value chain and are required to exercise due diligence.
In addition, the federal government supports a project led by the UN Working Group on Business and Human Rights that aims to clarify the practical steps that companies, investors and States should take to prevent and combat business-related human rights abuses in conflict, post-conflict and fragile contexts The EU adopted Regulation 2017/821 of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas. The relevant provisions will take effect on 1 January 2021. In accordance with the Federal Council decision of 14 August 2019, the FDJP is mandated to examine the introduction of a mandatory due diligence in the area of “minerals from conflict areas”. In the meantime, on 18 December 2019, the Council of States adopted a regulation on this issue as part of the preparation of an indirect counter-proposal to the popular initiative for responsible businesses. The National Council has not yet commented on this. The Federal Council is of the opinion that it should await the end of the parliamentary debates.
|Develop, promote and implement specific guidelines in respect of high-risk, conflict-affected areas.
Explore possible measures that are consistent with international rules, including a bill to be submitted for consultation.
|Example of the federal government’s contribution to organisations developing these guidelines.
Explore possible measures that are consistent with international rules, including a bill to be submitted for consultation.
|FDFA [Federal Department of Foreign Affairs],
EAER [Federal Department of Economic Affairs, Education and Research],
FDJP [Federal Department of Justice and Police].
3. The core content of the National Action Plan on Business and Human Rights
3.2 Action plan for community, land, natural resources and the environment
3.2.1 Overview of the situation
For the mining project, details of improvement of the environmental and social impact assessment system are as follows:
(1) Minerals Act B.E. 2560 (2017) and related subordinate legislation divided mining into three types according to the size of the area, types of minerals, geological characteristics of the mineral resources, mining methods and impacts on the quality of environment and public health that may arise from mining. The scope of the mining project (in accordance with the promotion and conservation of national environmental quality law defined as type 2 or type 3 mines) must include preparing the environmental impact assessment report (EIA or EHIA), dependent upon the context of each case.
(2) Improvements in the environmental and social impact assessment system for mining projects in order to be prudent and concise by requiring public hearings with affected communities, both according to the mineral law and in accordance with the law on promotion and conservation of national environmental quality are as follows:
(2.1) Minerals Act B.E. 2560 (2017) and subordinate legislation stipulates that a public hearing of the community is required and, in the event, that the community does not agree, a public referendum, in the area requesting a concession certificate, shall be conducted according to the characteristics and methods announced by the Minister.
(2.2) The National Environmental Quality Promotion and Conservation Act B.E. 2535 (1992). The project must conduct the EIA report with two times a participatory process, namely, the first time at the initial stage of the project to hear opinions on the draft proposal of the project and the scope of the study and, the second time, during the preparation of the draft report, measures to prevent and correct the environmental impact, as well as the area rehabilitation plan after the expiration of the concession. For the project that requires the EHIA report, four times participation is required: (1) To listen to opinions on the scope of the study; (2) For participation in the impact assessment; (3) For hearing opinions on the draft report; and (4) For the authorized approval agencies to organize the process for hearing opinions and to clarify in detail.
(3) In addition, the Mineral Act B.E. 2560 (2017) and the relevant subordinate legislation require the preparation of basic information on the environment and public health and creating a barrier area in the case that the mine may result in causing highly adverse impacts to the quality of environment and public health.
(4) At present, every step of the environmental and social impact assessment of the mining project considers the importance of three types of impacts from large-scale projects: (1) The impact of environmental pollution on health; (2) Forcing communities to relocate without compensation or insufficient plans; and (3) Lack of public consultation or inadequate studies with communities that are affected by the development of large-scale projects. Therefore, the Department of Primary Industries and Mines (DPIM) has emphasized the accuracy and transparency of information in every step from preparation of the area for the request for permissions, details of areas and communities, geological report, mining project plans and area rehabilitation, the EIA report, details and the opinions of the community, both according to the requirements of the mineral law and the law on the promotion and conservation of national environmental quality. As well as these issues, details of the consideration of the Environmental Impact Assessment Report from the Specialist Committee are to be stipulated as additional conditions for approval.
The government has encouraged people around the project area to participate in public consultations in several steps as follows:
- The procedure for requesting a mining concession certificate: Section 56, paragraph 2 of the Mineral Act B.E. 2560 (2017), which stipulates that after the request for a concession certificate is announced for a period of not less than 30 days, the local mineral industry official would arrange for public hearings in accordance with the criteria set by the Minister. At present, the said regulations have been established, according to the notification of the Ministry of Industry, subject: Regulations and method to listen to community comments in the area requested for a concession certificate B.E. 2561 (2018), which was announced in the Royal Gazette on 15 May 2018. The principle of the said announcement stipulates that the local mineral industry official with the village headman should prepare to hear the opinions of the villagers within a radius rim of the concession certificate requested as stipulated in each category (categories 1, 2 and 3), subject to public debate before making a report to the local government administration for an opinion and presenting to the authorized official for further consideration on the issuance of a concession certificate. In this process, relevant citizens can discuss and express opinions, concerns and suggestions.
- The process of developing the environmental impact assessment report: In the preparation for the analysis report on environmental impact, the Office of the Natural Resources and Environmental Policy and Planning stipulated that a public hearing of community during the beginning of the project must be arranged by informing the relevant agencies, notifying the public, organizing the first opinion survey and summarizing opinions. After that, they should arrange another public hearing during the preparation for a draft report and measures for prevention and correction of environmental impact by informing the relevant agencies, notifying the public, organizing the second public hearing and summarizing opinions. The results of the hearing will be put in the EIA report for further consideration by the Specialist Committee.
- During the mining process: The Department of Primary Industries and Mines (DPIM) would establish a civilian network to monitor the mining environment quality. Their responsibility is to report the environmental impact of dust, loud noise, vibration, etc. to the DPIM. If the network reports that it was affected from the mining operation, an investigation team will be sent to investigate. Should the examination results show that the mine causes real impacts, the mine operator will be ordered to improve and address the problems. The results of the problem solving will be sent to the network for information. Currently, there are 490 civilian networks covering most areas of mining and the Department of Primary Industries and Mines (DPIM) continues to strengthen the network by providing training to educate the network on environmental quality surveillance as well as constantly organizing activities to stimulate network performance.
3.2.3 Action Plan (2019–2022)
Pillar 1: State duties in protecting (Protect)
|Responsible agencies||Time-frame (2019–2022)||Indicators (wide frame)||Compliance with National Strategy/ SDGs/UNGPs|
|1.||Developing and improving laws, regulations, policies and related measures||Review mining laws, including issuing permits and defining mining areas||– Ministry of Industry||2019–2022||– Reviewed the mining law, licensing and mining areas||– National Strategy for Eco-Friendly Development and Growth
– SDG 13, 14 and 15
– UNGPs Articles 1, 3, 5 and 7
|2.||Public participation||Organize discussions and public hearing to receive people’s opinions, including from related ethnic groups in the area. The public and communities should get access to complete information and participate in decision- making processes easily, as well as giving comments on the evaluation of the effect on the environment, land expropriation considerations, land management and forest conservation of the government, etc. before undertaking any project, including large-scale projects relating to energy management, power plants, petroleum, and drilling for the exploration of natural resources, in order to encourage people and communities to have a role in determining project operation areas, considering the way of life and culture.||– Office of the National Economic and Social Development Council
– Ministry of Agriculture
– Ministry of Natural Resources and Environment
– Ministry of Energy
– Ministry of Interior
– Ministry of Industry
|2019–2022||– Number of activities and projects organized to listen to the opinions of the people relating to operations that affect the public||– National Strategy for Eco-Friendly Development and Growth
– SDG 7, 11, 13, 14 and 15
– UNGPs Articles 1, 3, 4, 5, 7 and 8
|3.||Environmental and Health Impact Assessment (EIA/ EHIA)||Strengthen the current impact assessment process to be stronger, especially in large-scale development projects such as infrastructure and mining and energy projects||– Ministry of Natural Resources and Environment
– Ministry of Energy
– Ministry of Industry
– Ministry of Transport
|2019–2022||– Strictly implementing the EIA/EHIA process especially on large projects||– National Strategy for Eco-Friendly Development and Growth
– National Strategy for Public Sector Rebalancing and Development
– SDG 11, 13, 14 and 15
– UNGPs Articles 1, 3, 4, 5, 7 and 8
The UK 2013 NAP in the section on Further actions planned [page 15] states:
“We will: … (ii) encourage trade associations/sector groupings of companies to develop guidance relevant to their members’ sector of activity on developing human rights policies and processes, including due diligence. There is generic guidance online about doing this e.g. at the Business & Human Rights Resource Centre. Some sector-specific guidance also exists, for example the International Council on Mining and Metals has produced a guide for mining companies on human rights due diligence…”
The UK 2013 NAP lists a number of initiative around extractives and mining in its chapter of References.
The UK 2016 Updated NAP in the Government Commitment section states that [page 10]:
“The Government will do the following to reinforce its implementation of its commitments under Pillar1 of the UNGPs: (…) Continue to work closely with Voluntary Principles on Security and Human Rights Initiative (VPI) member governments, extractive companies and civil society organisations, to promote greater understanding of the Voluntary Principles and strengthen the implementation, effectiveness and membership.”
The UK 2016 Updated NAP, in the section on Case studies, includes an example from Kenya regarding responsible business conduct and extractives [page 12].
UK 2016 Updated NAP includes a section devoted to Actions Taken [page 8]:
“To give effect to the UN Guiding Principles, the Government has: (…)
Taken account of business activity in conflict and fragile states, or countries with high levels of criminal violence, within the Building Stability Overseas Strategy. … We will continue to promote implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High-Risk Areas;
In March 2015 the Government concluded its chairmanship of the Voluntary Principles Initiative. During our chairmanship we worked to raise awareness of the VPI in priority countries for membership, to support UK oil, gas and mining companies to use the VPs to manage security and human rights risks more effectively, and encouraged greater openness by companies in line with the UN Guiding Principles on Business and Human Rights.”
Collaborating with Stakeholders [page 13]
“Agencies within the U.S. government have been catalysts for and participants in several MSIs, including providing start-up funding for the formation of the Fair Labor Association, which comprises companies across several sectors as well as academic, civil society, and other participants; facilitating the launch of, and acting as a leading member of, the Voluntary Principles on Security and Human Rights (VP), which guide oil, gas, and mining companies on providing security for their operations in a manner that respects human rights; and helping to launch and actively participating in the development of the ICOC and continued involvement as a member of the board of the ICOC Association.
Through the Extractive Industries Transparency Initiative (EITI), the United States is committed to promoting transparency in the extractives sector by playing an active role on the International EITI Board and Board committees. The U.S. commitment to EITI — both to promote it abroad and to implement it at home — sends a strong signal to our international partners that transparency is critical for countries at all levels of development, and in all regions.”
Outcome 2.1: Enhance the Value of Multi-Stakeholder Initiatives on RBC
Ongoing Commitments [page 15]
“DOL Technical Cooperation: DOL funds a range of projects involving collaboration with private sector actors on RBC issues, including: …
- A $6 million DOL project in Brazil and Peru, launched in March 2014, partners with national governments, businesses, and civil society organizations to combat forced labor and promote the exchange of good practices between the two countries. In Brazil, the project partners with the state of Mato Grosso’s Integrated Action Program to provide livelihood opportunities to households vulnerable to forced labor. In Peru, the project has conducted research on forced labor in gold mining and logging and trained more than 1,000 government officials on the issue of forced labor.” – Implementing Department or Agency: DOL
Outcome 3.3: Capacity Building and Technical Support to Promote Enabling Environments
New Actions [page 19-20]
“Support for Reducing Land Conflict in West Africa: State is supporting a program to reduce land conflict in Sierra Leone, Liberia, and Guinea by strengthening the capacity of civil society organizations to work on land rights and tenure issues as they relate to the UN Guiding Principles on Business and Human Rights. This program complements USAID’s existing investments in Côte d’Ivoire to support responsible business practices in the process of diamond sourcing, support country compliance with the Kimberley Process Certification Scheme, and stem the flow of conflict diamonds, while improving community land rights.” – Implementing Department or Agency: State
“Stakeholder Engagement in Extractive Industries in East Africa: State is funding a program to promote RBC in East Africa. The goal of the program is to strengthen civil society’s capacity to meaningfully participate in business and human rights initiatives in East Africa and to reduce conflict for communities in the operations of extractive companies.” – Implementing Department or Agency: State
Ongoing Commitments and Initiatives [page 20]
“Dodd-Frank Section 1502: Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) supports regional and international efforts to break the link between conflict and natural resources and prevent armed groups or abusive state forces in the African Great Lakes region from benefiting from the sale of certain natural resources that are sourced from the Democratic Republic of the Congo (DRC) or an adjoining country. Section 1502 requires certain companies to submit annually a description of the measures taken to exercise due diligence on the source and chain of custody of the four “conflict minerals.” Commerce will continue to work with the U.S. Geological Survey to issue annually a list of conflict mineral processing facilities to assist in this reporting and will develop recommendations on ways to improve accuracy and establish standards of best practices. State will continue to provide guidance to help companies ensure that their products and their suppliers’ products do not directly or indirectly finance armed conflict or result in labor or human rights violations. Through the Public-Private Alliance for Responsible Minerals Trade, State and USAID work in partnership with U.S. companies and civil society to support conflict-free sourcing from the DRC and African Great Lakes region.” – Implementing Department or Agency: State, USAID, SEC, Commerce, USGS