Advancing Stakeholder Engagement and Remedy in the Mining Sector

This is an extract from Estelle Levin-Nally's talk at Investing in African Mining Indaba on 6 February 2025 during an IRMA-hosted workshop on remedy and stakeholder engagement. Read the full talk here.

Here is broadly what the UNGPs say about remedy:

Remedy is the process that counteracts or makes good any human rights harms that have occurred. It can take many forms, e.g. “apologies, restitution1, rehabilitation2, financial or non-financial compensation, and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition.” It involves both restoration for the affected rightsholder and mitigation plans to strengthen prevention and minimization.

Why is remedy so important?

1. It’s one of the three core pillars of the United Nations Guiding Principles for Business and Human Rights, which sets out clear guidance to governments, business and other stakeholders on how to support victims of human rights harms to access remedy.
2. As the UNGPs are being domesticated into national and international laws, then it is important for miners to demonstrate conformance with them for compliance purposes but also to meet business partner expectations, especially for European downstream entities and, increasingly, investors.
3. Past harms leave people aggrieved, which affects trust and the willingness to participate in or support company or statutory initiatives. Low trust elevates the likelihood of resistance and conflict and prevents the types of cooperation that can maximise positive impacts for business and society. It is also at the root of permitting delays and refusals in a number of jurisdictions and a lack of investment, and as such is a key barrier to scaling minerals production but also to achieving project viability and financing.
4. Equity is a basis for driving sustainable development. Without access to remedy, harms are inequitably distributed leading to greater socio-economic inequality, deepening poverty and leaving the promise of minerals-driven prosperity unfulfilled.
5. Company directors have a fiduciary duty to conduct business ethically. Creating harm and not repairing it is unethical.
6. Perhaps most importantly, remedy is a pathway for healing for victims and their families. This has inter-generational ramifications because trauma is inherited both epigenetically and behaviourally. As a descendant of Jewish refugees and married into an Irish family, I see this inherited trauma in action in my own life.

If it’s so important, why aren’t we doing it well yet in mining?

First and foremost, rule of law is weak in many mining jurisdictions so access to justice through the courts is elusive. Furthermore, a global shift away from democracy towards autocracy means that some states are intentionally complicit in harms to minerals sector stakeholders in order to push forward their policy agendas; this may be through deregulation and/or permitting state-led oppression of community activism. It’s also particularly difficult for victims of harms by state-owned enterprises in weak states to access remedy, because the state is both perpetrator and protector.

Secondly, standards have not dealt with remedy well until recently. Downstream actors have not been using their leverage to push for remedy as part of their supply chain due diligence efforts because the OECD Minerals Guidance excludes remedy save for an expectation for a company to have an operational grievance mechanism (but with no further detail given). Most minerals value chain actors remain wedded to the OECD Minerals Guidance 5-step framework, though fortunately, some – led by standard setters who’ve seen the light – are now using the OECD Responsible Business Conduct 6-step framework as their base (which has a sixth step on remedy, thank goodness.) It is also only recently that minerals standard setters, such as RMI, ASI, and IRMA, have either added operational grievance mechanisms into their own governance frameworks or sought to align their systems to the UNGPs in order to make it possible for affected rightsholders to seek recourse through them.

Lastly, the pathways to remedy differ within places for different people, and differ between places. Do affected rightsholders even know they have a right to seek remedy? And do they know how to pursue remedy?

There’s still so much to do if we are going to get better at remedy in minerals value chains. We have to make remedy a focus and a priority for all stakeholders if we are going to build truly equitable, resilient and prosperous minerals sectors and communities. This requires dedicated conversations like we’ll have today.

Where to begin? Here are a few learnings so far:

1. Miners, their business partners and civil society can do so much more to support (potentially) affected rightsholders to understand how to access remedy should they be harmed. This isn’t just about publicising the existence of a grievance mechanism, but actually educating affected communities on the variety of avenues to justice that exist, whether through the courts, OECD National Contact Points, extra-territorial law firms like Leigh Day that represent victims harmed by businesses where UK jurisdiction applies, standard setters, etc.
2. Remedy preparedness is crucial. If you don’t anticipate what’s likely to happen and don’t prepare for it, it’s likely to be messier and more expensive. Mines are great at emergency preparedness for health and safety issues, but what about the other potential harms like sexual and gender based violence, community conflict, drinking water contamination?
3. Prevention is ultimately better than remedy. If you cut down an old growth forest, replacing it with a plantation is not going to do it!

At the end of the day, as human beings we are all seeking dignity as the basis for wellbeing. Without access to remedy, victims continue to suffer. We know we have achieved remedy when dignity is restored. Let that be front of mind as we dive into this subject.

The Initiative for Responsible Mining Assurance is leveraging its existing standards, credibility, and multistakeholder process to build a framework to help remedy human rights and environmental harms. The initiative has launched a process to research, build, and test an IRMA Remedy Framework to respond to communities and workers who have been harmed by mineral exploration, development, and processing, providing meaningful solutions for past and ongoing harms. The workshop hosted in February 2025 is part of this effort, gathering feedback from stakeholders as the process evolves. If you would like to find out more, please contact info@responsiblemining.net