In a recent article, entitled Human Rights Considerations & Best Practices for Mining Companies,Viren Mascarenhas and Kayla Green of global law firm King & Spalding point out that international human rights laws and norms are increasingly playing a role in defining and regulating how mining companies conduct their businesses all over the world. “Shareholders increasingly demand compliance with human rights norms; national and regional laws require companies to investigate and report on use of ‘conflict minerals’ (gold, tin, tungsten, and tantalum), companies have to defend themselves from lawsuits brought by human rights activists alleging non-compliance; and NGOs have embarked on public assessments of how companies compare against each other in terms of compliance with human rights. These developments mean that mining companies must undertake systematic human rights due diligence to ensure that they operate within the human rights paradigm.”
The article describes the recent trends in human rights law relevant to mining companies, and suggests best practices that companies should be implementing. “In particular, mining companies must (a) develop a human rights policy; (b) create a culture of respect for human rights through systematic trainings and other initiatives; (c) conduct due diligence to identify areas of potential human rights violations given the needs and nature of the business; (d) report on human rights practices (required under various reporting laws); and (e) provide a remediation process, such as a grievance mechanism, to remedy human rights violations.”
Mining companies face unique challenges with regard to human rights concerns. The Organisation for Economic Co-operation and Development (OECD) has issued three editions of the OECD Guidance, which provide guidance to mining companies regarding the sourcing of conflict minerals. National Contact Points (NCPs), established in OECD Member States to provide guidance and handle inquiries related to the OECD Guidelines, increasingly are investigating complaints filed by local communities regarding mining operations. “National laws increasingly impose human rights reporting requirements on companies in the extractives industry. For example, EU legislation on regulating conflict minerals on trade in tin, tantalum, tungsten and gold will come into effect in 2021. And recent developments in jurisdictions such as Canada and the United States indicate that parent companies may well be held accountable by their national courts for the actions of their subsidiaries operating overseas that violate human rights norms. All in all, companies operating in the extractives industry will increasingly come under scrutiny by the human rights community, as well as their employees, clients, and their shareholders. It is time to take action.”
A more in-depth version of this article was initially published in Law360 and can be accessed at: https://www.law360.com/articles/975358