(Ottawa, December 17, 2013) A previously confidential legal waiver, forced to light by litigation in England, raises serious questions about African Barrick Gold’s handling of alleged violence against civilians by police and security guards at its North Mara mine in Tanzania.
African Barrick Gold (ABG) is a UK-registered company, 74 percent owned by Barrick Gold Corporation of Toronto.
As early as May 30, 2011, just two weeks after the fatal shooting of five men at the North Mara mine, Barrick issued a statement that “ABG recently notified Barrick that it had received highly disturbing allegations of sexual assaults by the police and ABG security against local women.” While the companies claimed to have launched a full investigation and to be addressing the allegations of violence and rape by security guards and police at the mine, the results of the investigation have been kept completely secret. No concrete information has been made public.
The confidential legal waiver, dated December 16, 2012, is part of a document being used at North Mara for complainants who enter the mine’s grievance process. It raises serious concerns about ABG’s handling of the cases of villagers around North Mara. The document speaks of “Condolence Disbursements”, for which the complainant has to work for the company over a period of two years. Complainants are required to sign the waiver and commit themselves to secrecy.
“The violence against men and women around the North Mara mine shares many characteristics with the violence we have been researching and publicizing regarding Barrick’s Porgera Joint Venture mine in Papua New Guinea,” says Catherine Coumans of MiningWatch Canada. “In that regard, the confidential waiver that has surfaced is a major concern for us.”
Barrick acknowledged the similarities between North Mara and the issues faced at Porgera, stating, “Following recent events at the Porgera Joint Venture in Papua New Guinea, employees have a heightened sensitivity to these issues.”
ABG claims to be following the UN Guiding Principles on Business and Human Rights, which proposes that corporate grievance mechanisms should be transparent and should provide public information about the procedure. Yet, there is very little publicly available information about the grievance program at North Mara, and there is no information on how ABG has addressed victims of rape.
“Why is this program shrouded in secrecy?” asks Coumans. “Were victims involved in determining the disbursement being offered? Where is the remedy framework that guides this process? Where are the numbers of alleged victims who have been processed through this program? What are the timelines?”
Coumans expresses concern not only about the process, but about the waiver itself. “This waiver is restrictive in ways that have questionable validity,” she said.
Despite the similar circumstances, the document being used at North Mara commits the complainant to complete secrecy and goes even further than the waivers Barrick has required of rape victims at the PJV mine. At Porgera, the waiver was changed by Barrick after it came under scrutiny from MiningWatch Canada and other organisations.
The legal waiver used at North Mara covers not only the specific grievance brought by the complainant but also “any other claim which could have been brought by the Complainant” against ABG or its affiliates, including Barrick. (Barrick Gold owned and operated the Tanzania mines, which have a history of conflict and violence, prior to spinning off its African operations in 2010 to create ABG.)
Furthermore, in a “covenant not to sue” the complainant is required to agree not to “assist other complainants” in their potential suits against ABG or its affiliates. The waiver is so broad that complainants might believe that they would be restricted from acting as witnesses in civil litigation or even in criminal proceedings.
“MiningWatch Canada has pressured Barrick to address similar concerns in regard to the Porgera mine,” says Coumans, “and although that process is still grievously flawed, Barrick seems not to have applied even the improvements made in Porgera to the North Mara case.”
- the legal waiver
- background document (below)
For more information contact: Catherine Coumans, (613) 569-3439, catherine(at)miningwatch.ca
Background: Some Comparisons between “remedy” processes in Porgera (Papua New Guinea) and North Mara, Tanzania
Catherine Coumans, Ph.D. MiningWatch Canada
Public disclosure – In light of considerable pressure by MiningWatch Canada and others, Barrick has provided information regarding the Porgera Joint Venture (PJV) non-judicial project-level remedy program for victims of rape by its security guards on the following issues, among others: The process by which the remedy program was designed; types of remedy rape victims could expect to receive; the waiver they would be required to sign; and the number of women who Barrick says will be provided with benefits packages. See http://www.barrick.com/operations/australia-pacific/porgera/default.aspx.
In comparison, the non-judicial project-level “remedy” program for mining related victims of violence at North Mara remains shrouded in secrecy. It is unclear what sorts of violence are being addressed and whether programs exist for men only, or also for female rape victims, and whether female rape victims are also expected to work for their “Condolence Disbursement.”
Remedy Framework – Barrick Gold refused requests to provide MiningWatch Canada and local Porgeran organizations the remedy framework that guided the remedial program for rape victims in Porgera. However, after MiningWatch received a copy of the framework from another source, and publicized it, Barrick made the framework and subsequent versions thereof public.
To date, no remedial framework has been released regarding the process for addressing claims by victims of alleged violence in the North Mara case.
Legal Waivers – The original legal waiver used in the case of victims of rape by Barrick’s security guards in Porgera is described in the remedy framework document that was made public by MiningWatch Canada on January 28, 2012. The waiver was changed by Barrick after it came under public scrutiny. The waiver does not request secrecy from the rape victims, and it does not attempt to stop rape victims from suing PJV and Barrick for issues not related to the rape for which compensation is granted, or for future sexual assaults by the mine’s security forces. Following changes made by Barrick, it no longer attempts to stop rape victims from participating in criminal proceedings that may be brought by the state of Papua New Guinea.
In comparison, the legal waiver that has surfaced regarding victims of violence related to the North Mara mine is labelled “strictly confidential,” and it is far more expansive. It appears to cover not only the specific grievance brought by the complainant but also “any other claim which could have been brought by the Complainant” against ABG or its affiliates, including Barrick. Furthermore, in a “covenant not to sue” the complainant is required to agree not to “instigate, encourage or in any way assist other complainants” in their potential suits against ABG or its affiliates. While ABG claims that the clause was not intended to prevent complainants from acting as witnesses in litigation, the clause would have this effect. The waiver is not clear that it cannot and will not restrict the complainant from participating in criminal proceedings that may be brought by the Government of Tanzania. ABG and Barrick have released no information about how the effects of the clause are explained to complainants.