On March 2, the Mining Association of Canada (MAC) voted to adopt the Voluntary Principles on Security and Human Rights (the VPs). While several MAC members were already formally implementing the VPs, the adoption by MAC means that the human rights standard now applies to all MAC members. This brings MAC in line with the government of Canada’s own endorsement of the VPs in 2009.
The VPs were established in 2000 as a collaboration between the United Kingdom and United States governments, extractive companies (primarily in the oil and gas sector) and non-governmental organizations (NGO). They were created to help extractive sector companies protect their assets and people, while respecting human rights. The VPs include commitments by signatories to conduct risk assessments and manage relations with public and private security to protect human rights.
The VPs require company signatories to rely on credible information acquired from various stakeholders (including local governments and civil societies) to assess the human rights risks present in their operating environments relating to security issues. This includes identifying political, social and economic risks and any related potential for violence. It also requires consideration of the human rights records of local governments and the application of the rule of law as well as any other sources of conflicts that could have bearing on the extractive project.
If companies are relying on publicly provided security offered by local government, the VPs require companies to regularly consult with the government and local community about the human rights related impact of their security arrangements.
Where private security is used, the VP require companies to ensure that the security deployed is competent, appropriate and proportional to the threat and that any use of force is properly reported (both to the company and the appropriate governmental authorities). If misconduct has occurred, it should be subject to discipline as appropriate. Companies should also be conducting due diligence on security providers and not engage anyone who has engaged in past human rights abuses.
Companies should also develop and implement company policies on the use of force and limit their role to preventative defensive services only. The policies and processes should comply with applicable international standards. While the VPs pre-date the UN Guiding Principles on Business and Human Rights, consideration of how this important standard affects policy and practice on security and human rights would be prudent and consistent with the VPs (including consideration of remedy where adverse human rights impacts have occurred). This apparent relationship was alluded to by MAC’s president and CEO Pierre Gratton when he remarked publicly at the time of the announcement that the adoption of the VPs “…underscores MAC members’ commitments to respect human rights and to operate responsibly with respect to security practices.”
MAC’s adoption of the VP means that all MAC member companies that rely upon private or public security forces are committing through their association with MAC to implement a security and human rights approach that is consistent with the VPs. This necessitates conducting and evaluating risk assessments on the extractives projects and facilities they control.MAC members will also report on their implementation of the VPs in MAC’s Towards Sustainable Mining annual progress reports.
The adoption is made significant from a legal perspective in light of litigation in Canada where adherence to the VPs by adopting companies has been used to ground tort claims against parent companies in Canada for human rights damages relating to subsidiary companies operating outside of Canada. This potential legal risk will make implementation a legally significant question for MAC members that should not be taken lightly.
Ultimately, however, adoption of the VPs by MAC is designed to mitigate rather than create risks for its memberships and follows a broader trend towards adoption of human rights standards in the extractive sector. This is underscored by the Canadian government’s endorsement of the VPs in the Corporate Social Responsibility (CSR) Strategy for the Extractive Sector originally released in 2009 and updated in 2015. The CSR Strategy expressly endorses the VPs as one of six leading standards that Canadian extractive companies are expected to apply to their international operations. In this sense, the move by MAC to endorse the VPs is responsive to the prevailing view on minimum standards on security and human rights in the industry.
__________________________________________________________MICHAEL TORRANCE is a partner at Norton Rose Fulbright, Toronto.