Letter to UN High Commissioner for Human Rights re: Barrick Gold’s Grievance Mechanism at Porgera Mine

Mr. Zeid Ra'ad Al Hussein
UN High Commissioner for Human Rights
Office of the United Nations High Commissioner for Human Rights (OHCHR)
Palais Wilson
52 rue des Pâquis
CH-1201 Geneva, Switzerland

July 13, 2015

Dear Commissioner Al Hussein,

Re: Barrick Gold’s proposed assessment of its project-level non-judicial grievance mechanism for sexual assault victims in Papua New Guinea does not meet criteria set by the OHCHR in 2013.

I am writing to express concern about a proposed review that Barrick Gold (Barrick) has commissioned of its remedy program for rape victims at the Porgera Joint Venture (PJV) mine in Papua New Guinea.[1] The proposed review does not meet criteria set by the OHCHR in 2013[2] for a review of the Porgera remedy program, particularly with regard to: process, independence, inclusiveness and transparency, and credibility.

Background

In August 2013, the OHCHR issued a 13 page opinion on Barrick Gold’s remedy mechanism for victims of rape and gang rape by mine security at the company’s Porgera mine in Papua New Guinea. At the time, the mechanism was already in progress, but had become the focus of serious human rights concerns expressed by MiningWatch Canada[3], the International Human Rights Clinic of Harvard’s law program, the Center for Human Rights and Global Justice of New York University School of Law NYU clinic and others. 

In its opinion, the OHCHR recommended that:

…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 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. (p.10) [emphasis added]

Barrick chose not to implement the OHCHR’s 2013 recommendation for review of the remedy mechanism to “identify possible areas for improvement,” while the mechanism was being implemented. At the Business and Human Rights Forum in Geneva on December 1, 2014, Barrick launched a detailed report of the then “nearly complete” remedy mechanism.[4]

Barrick’s 2015 “final” assessment of its remedy mechanism lacks credibility

On April 20, 2015, MiningWatch Canada was contacted by a consulting company Enodo Rights (Enodo), informing MiningWatch that Enodo had been contracted by Barrick and the Porgera Joint Venture to conduct “an authoritative, independent and public assessment” and “final report” on the Porgera remedy program. In this e-mail Enodo recognized MiningWatch Canada as a “relevant international stakeholder” for purposes of an interview and requested a date for that interview. This request for an interview was the first indication MiningWatch Canada had that a final review was to be conducted. 

The proposed review of Barrick’s remedy mechanism is not inclusive. The review Barrick has commissioned clearly ignores the OHCHR’s recommendation that an independent review be based on 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” (emphasis added). Not only MiningWatch Canada, but also other local[5] and international individuals and organizations that have worked for many years (independently from Barrick) on the issue of abuse by mine security at the PJV mine, including sexual violence, have been excluded from the process to identify reviewers considered credible by ourselves and Barrick to conduct this important review. This is spite of fact that as early as 2013, MiningWatch responded to the OHCHR opinion in a public letter indicating willingness to work with Barrick and other key stakeholders in designing a credible review process.[6] Additionally, based on exchanges with Barrick and Enodo, it is apparent that the female claimants were also not consulted with regard to the decision to hire Enodo to conduct this review.

The proposed review of Barrick’s remedy mechanism is not independent. Barrick chose the reviewer Enodo, as well as three “external experts.”[7] In response to questions regarding process and methodology with respect to the proposed review, Enodo referred these questions by MiningWatch to Barrick’s legal council Jonathan Drimmer and director of corporate social responsibility Simon Jimenez for a reply. Barrick’s Vice-president of corporate social responsibility Peter Sinclair wrote to MiningWatch on April 23, 2015 inviting MiningWatch to refer any further questions to Enodo, the external experts, or himself.  MiningWatch wrote back to Peter Sinclair to communicate that the process Barrick was engaging in for this review did not conform to the recommendations set out by the OHCHR in 2013. Barrick’s Peter Sinclair responded on May 18, 2015, noting that “[w]e have considered the points you raised, and believe that the process conforms with the OHCHR’s recommendations.” Although MiningWatch copied Enodo on these exchanges with Barrick, as well as the three “external experts,” it was Barrick’s Sinclair who responded and dismissed MiningWatch’s concern.

The proposed review of Barrick’s remedy mechanism is not transparent. For example, in response to questions by MiningWatch regarding the proposed methodology for the proposed review Enodo responded on May 22, 2015 noting “We will explain our methodology in depth in the public report.” That was the last communication MiningWatch has received from Enodo. There has been no further update from Enodo or Barrick on the review process, nor a further request for an interview. MiningWatch has never been contacted by any of the “external experts” in spite of the fact that MiningWatch copied them on all exchanges with Barrick.

The proposed review of Barrick’s remedy mechanism is not credible. For all of the above reasons, Barrick’s proposed review lacks essential credibility. It is this credibility that the OHCHR’s recommendations of 2013 sought to ensure.  

In spite of these concerns, MiningWatch remains open to participating in a transparent process, with key local and international stakeholders and the claimants to arrive at a truly independent, transparent, and credible review process that will be accepted by all parties. It should be possible to achieve this goal as set out by the OHCHR in 2013.

MiningWatch Canada therefore appeals to the OHCHR, as well as the members of the UN Working Group on Business and Human Rights, to support our effort to ensure that this critical review of Barrick’s remedy mechanism in Papua New Guinea meets the criteria set out by the OHCHR in 2013.

Sincerely,

Catherine Coumans, Ph.D.