A Gender Perspective on Business, Human Rights, and Sustainable Mining

1. A Gender Perspective on Business, Human Rights, and Sustainable Mining Sara L Seck, PhD, Associate Professor, Western Law Lakehead University, February 2017

2. Outline • Two stories X2 • Sustainable Mining & Environmental Justice • Canadian Mining: Inside/Outside • Business Responsibilities for Human Rights • Canada’s CSR Strategy • Integrating Gender

3. Two Stories… International Sustainable Mineral Development Law Environmental Justice and Mining-Affected Communities Is para 46 about satisfying consumption patterns of the “north” or sustainable livelihoods of the “south”? Indigenous Rights; Environmental Rights Resistance: “environmental human rights defenders” Women, children (girls?) 2002 Johannesburg PI, para 46: • “mining, minerals and metals” are “important to the economic and social development of many countries” and “minerals are essential for modern living” • Enhancing contributions requires …participation of stakeholders • local and indigenous communities, and women, to play an active role … (JPI)

4. Two more stories… OUTSIDE Canada INSIDE Canada Law (whose law?) And ?? • SCFAIT Report 2005 • Roundtables & Advisory Group Report • 2009 CSR Policy: Building the Canadian Advantage • CSR Counsellor • Etc.

5. 2011 UN Guiding Principles on Business and Human Rights • State Duty to Protect • At core of international human rights law • Corporate Responsibility to Respect • What society expects: social license to operate • Access to Effective Remedy • Judicial & non-judicial • State & non-state-based grievance mechanisms UN Guiding Principles on Business and Human Rights Working Group on BHR • GPs Portal

6. Business responsibility to respect • Global standard of expected conduct • all human rights, all businesses, • all countries irrespective of whether or not state is in compliance with its own obligations • Respect: prevent, mitigate, and remediate • do no harm, and address impacts • How? • Policy, human rights due diligence: • “beyond risks to company, to includes risks to rights holder”

7. BHR and law? Principle 23: All business enterprises should: • Comply will all laws and respect IHRL • Seek ways to honour IHRL if conflict • Treat risk as a legal compliance issue.

8. Canadian Mining Internationally 2014, Doing Business the Canadian Way, A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad • CSR Counsellor for Extractive Sector • Legislative proposals? CNCA Mining Ombuds Sara Seck, “Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights” (2011) 49 Canadian Yearbook of International Law 51-116. SSRN

9. International CSR Guidelines • Environmental and Social Performance Standards of the International Finance Corporation • Voluntary Principles on Security and Human Rights • Global Reporting Initiative • OECD MNE Guidelines & National Contact Point Sara Seck, “Business, Human Rights, and Canadian Mining Lawyers” (2015) 56 Canadian Business Law Journal 208-237.

10. Relevance of IHRL to Mining Companies & Lawyers? • UNGPs are embedded to differing degrees into almost all international CSR standards • Strategic business advice or international CSR law? Less important than acknowledging standards are legally relevant Why? – transnational litigation (Hudbay, Tahoe, Nevsun…) - Costs of conflict research, eg: Davis & Franks

11. Why gender and mining?(beyond JPI…) • Ecofeminist theories (political ecology) [contested] • Academic case studies: women & environmental justice • Anecdotal evidence of women leading activism: • Anti-mining [WoMin] • Responsible mining [FNWARM] • Environmental human rights defenders • See Deonandan study:]

12. Why gender and mining?(beyond JPI…) But complexity: not simply “anti-mining” • Women in mining (large scale) [WIMCanada] • Artisanal miners (women & children) [GenderASM Toolkit]

13. IHRL:Environmental Rights • John Knox, Independent Expert on Human Rights and the Environment (2013-4 Mapping Report) • Procedural environmental rights: • Access to information (assess impacts, make public) • Public participation in decision-making (expression, association, life, liberty, security…) • [environmental human rights defenders] • Access to justice • Substantive environmental rights: • Legal framework (constitutional rights?) • Water, health, healthy environment • State obligations to regulate private actors

14. IHRL: “vulnerable groups” • Knox Mapping Report continued: “States have additional obligations with respect to groups particularly vulnerable to environmental harm.” 3 groups: • Women • Children • Indigenous peoples Sara L Seck, “Human Rights and Extractive Industries: Environmental Law and Standards”Human Rights Law and the Extractive Industries, Paper No. 12, Page No. 12-1 – 12-42 (Rocky Mt. Min. L. Fdn. 2016).

15. Knox report continued… • Committee on Elimination of All Forms of Discrimination Against Women, in construing CEDAW: • “States should ensure that public participation in environmental decision-making, including with respect to climate policy, includes the concerns and participation of women.” [Knox para 70] • States should “conduct research on the adverse effects of environmental contamination on women, and provide sex-disaggregated data…” [para 71] • Other IHRL examples [Knox paras 70-72]: • Special Rapporteur, Right to Health re water decisions • Special Rapporteur, Hazardous Substances re mercury • CEDAW Committee re older women and climate

16. ISDL sources: • Gender mainstreaming (Beijing 1995, UN 4th WCW) • Women’s empowerment principles (2010 – UN Women/UN Global Compact) • Sustainable Development Goals 2015 • Goal 5: Achieve gender equality and empower all women and girls • 5.5 ensure women’s full and effective participation and equal opportunities for leadership… • [nothing on “environment”]

17. SDGs(beyond Goal 5?) Goal 2: End hunger, achieve food security, etc… • 2.3 by 2030 double agricultural productivity and incomes of small-scale food producers, in particular women, indigenous peoples… Goal 16: Peaceful and inclusive societies, access to justice • 16.b Promote and enforce non-discriminatory laws… Goal 6: management of water and sanitation • [No gender reference] Goal 15: biodiversity • [No gender reference]

18. Gender and Mining • Prevention: • Corporate governance: board diversity • CBCA amendment • Consultation/consent processes • CSRM, Mining and Local-Level Development (gender dimensions of agreements) • OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector • Annex B: Engaging with women

19. Gender and Mining • Remedy: (examples) • Litigation: • Hudbay in Guatemala • Non-judicial remedy: • Barrick Gold, Papua New Guinea

20. Implications?Future Research: • Mining regulatory frameworks: • proposals to amend to integrate gender? • Mining CSR BHR frameworks: • proposals to amend to integrate gender? • Beyond mining: Climate Justice & Gender • [eg extractive industry stakeholder engagement guidance] • Corporate governance – women and boards of directors Intersections