4 March 2022
On March 4th, I was invited to present at the UN Office of the Office of the High Commissioner for Human Rights (OHCHR)’s consultation related to its Accountability and Remedy Project (ARP). The session was focused on human rights due diligence regimes and private grievance mechanisms. Here are the remarks from that session. You can find the videos for our session here starting at 37 minutes and you can find out more about the Accountability and Remedy Project here.
Anna Triponel: Thank you for inviting me to be a part of your discussions today. I was asked to share further insights into a mining company’s operational-level grievance mechanism for which I serve as International Human Rights Expert since 2020. I’m referring to the community-focused grievance mechanism set up by Gemfields for their subsidiary Montepuez Ruby Mining (MRM) in Mozambique.
My role entails providing advice and support to the OGM, in particular to support the Secretariat, Fact-Finding Team, and Independent Panel in resolving complex grievances about allegations of severe impacts on human rights – for instance providing support on the triage of grievances and providing guidance on remedies. To be clear, I am not a voting member of the Independent Panel and I do not decide on the remedies to be provided.
Rather than speaking about the mechanism myself, I thought it would be fantastic if you could hear directly about setting up the OGM and the process from the General Counsel at Gemfields who oversaw its development, and of course is deeply involved in its operation. So I’m delighted to be joined today by Toby Hewitt, General Counsel at Gemfields, and we will structure our session in a Q&A format.
Toby, thank you for joining us today. Let’s start at the beginning.
Anna Triponel: How did the OGM start out – can you share a little bit more about the beginnings?
Toby Hewitt: It arose out of the no admission of liability settlement agreement which ended Leigh Day’s English High Court litigation against Gemfields. This lawsuit related to allegations of widespread human rights abuses by security forces of Gemfields’ Mozambican ruby mining subsidiary, which is called MRM.
Frankly I was not aware of OGMs prior to the Leigh Day settlement. However, the company fully bought into the need for a fully functioning, industry leading and independent OGM from that point. We realised that this would be the only way in which to help ensure we could hear about concerns and grievances on an ongoing basis, as well as to address any historic claims that had not been the subject of the settlement.
Anna Triponel: Thanks for that – and tell us – how did you proceed with creating it – who did you bring in and how?
Toby Hewitt: Yes, well this has since turned into a project of many moving parts and players, and we have devoted considerable resource in terms of financing and management time. We have agreed on a project duration of at least two years.
Following the tender process, we engaged Triple R Alliance or TRA, specialist human rights consultants, to assist with the design of the OGM. We wanted to make sure that we were following the effectiveness criteria of the UNGPs and TRA, as experts in them, could help us with this.
Synergy Consulting were appointed as Independent Monitor to report on the progress of the OGM and performance against UNGPs Effectiveness Criteria on a six-monthly basis. We wanted to ensure that we could monitor the effectiveness of the OGM over time, and this independent structure helps ensure we can do that
We appointed yourself as independent human rights advisor to the OGM during implementation. We wanted to ensure that the OGM benefited from ongoing hands-on support and guidance on the UNGPs, so your involvement with the various players and stakeholders of the OGM helps us with this.
Beyond these external players we worked with, I want to emphasize that for us, fieldwork and consultation amongst the potentially affected communities was the team’s “north star” in terms of design and implementation of a unique OGM suited to its local context.
Stakeholders were identified through a stakeholder mapping process, including NGOs and civil society groups. Over a four-month period in 2019, OGM design team had over 75 consultation meetings. Community engagement comprised focus group discussions involving traditional leaders, religious leaders, elders, women and youth representatives and representatives from the seven communities in and around MRM’s concession area.
Community engagement and feedback sessions have continued throughout the implementation of the OGM and have been very valuable.
Anna Triponel: Ok so we have the various experts you relied on and are relying on, and the fundamental importance of engagement with stakeholders feeding into the design. Where did you land in terms of structure – what does the OGM look like?
Toby Hewitt: An Independent Panel has been formed to deliberate on grievance outcomes. We have an independent fact-finding team formed to investigate grievances and make recommendations to the IP and we have a Secretariat that helps us coordinate the whole process.
Both the Independent Panel and the fact-finding team are comprised heavily of representatives from the communities themselves, in order to build confidence of the potential users of the OGM. The Independent Panel and the fact-finding team were themselves chosen by an independent selection committee.
There was an initial pilot phase during which a sample of cases was tested through the system following which the OGM went live in February 2021. A local public awareness campaign preceded this. This was important for us to raise awareness on the ground, building on the engagement we conducted.
Anna Triponel: When we look at the structure you’ve just laid out here, how did the UNGPs’ effectiveness criteria inform it?
Toby Hewitt: The OGM was specifically designed to build on and integrate the UNGPs effectiveness criteria. We decided to create a handbook as a framework/reference tool/”how to” guide for all the OGM players. A schedule to the handbook records how each of the effectiveness criteria have been reflected in the design of the OGM. Let me give you a few examples
I’ve mentioned the importance of stakeholder engagement and input into the design. I know you spoke Anna at a prior session on OGMs and you emphasized there how we revised our approach to reflect the inputs we received. And we did make a number of changes following community member input, which included creating more accessible access points, increasing the number of face-to-face meetings, enhancing the participation of women as OGM staff and providing more tailor-made assistance for vulnerable groups.
We are benefiting from the Independent Monitor’s assessment of the OGM’s performance against the various effectiveness criteria. The first full independent monitoring report has recently been finalised and a summary will soon be published on Gemfields’ website.
Anna Triponel: And can you share some of the challenges you faced in the creation of the OGM, and how you sought to overcome those?
Toby Hewitt: I’d like to point to one key one. At first, there were tensions between applying the UNGPs and applying Mozambican law. This included initial resistance from the Provincial Prosecutor, who was concerned about the boundaries between the OGM and state judicial responsibility.
We entered into in a prolonged period of engagement with provincial and central government authorities to discuss this, and ultimately the OGM was allowed to proceed on the basis of an agreed “Principles of Collaboration” document.
The key distinction was that we made clear that the OGM was concerned with providing private remedy to the victims of bona fide human rights impacts whereas that State prosecutorial authorities were concerned with bringing perpetrators of human rights abuses to justice.
It was also agreed, subject to appropriate safeguards for claimants, that the IP should report potentially serious crimes to the state authorities.
Anna Triponel: Thanks. So we know that the timeframes were as follows: there was a process of co-design of the OGM which started in January 2019. There was a piloting phase which took place from October 2020, to February 2021. And since February 2021, the OGM has been operational. It’s been close to a year. What can you share with us, what are some of your learnings, and in particular when it comes to applying the effectiveness criteria in practice?
Toby Hewitt: The implementation of the OGM has not been straightforward and there are a number of key challenges still to be resolved.
Although we put considerable time and effort into getting the structure right at the outset, I cannot guarantee that the OGM will be ultimately considered a success. It is no easy thing to get these mechanisms right – but we will do everything we can to promote this.
There have been multiple learnings, and I share these openly with the audience to the extent this can help others who may be in similar situations. We also of course welcome hearing from others as part of the Q&A how they may have faced and addressed similar challenges.
Most of all, we have found that it is important to retain a positive and patient attitude to problem-solving and to think flexibly with the overall parameters of the UNGPs and Mozambican law. It is also important to ensure that any initiatives concerning the OGM are practicable within the local context.
Although we provided for ongoing dialogue between the company, on the one hand, and the Independent Panel, on the other, this has been a challenge to coordinate in practice, due to a range of factors. This lack of regular and meaningful dialogue between the company and the Independent Panel definitely constrained progress overall and allowed bottlenecks to occur in the process. This was also a key finding of the Independent Monitor’s report.
We have responded to this by organising a workshop with a trained professional mediator in the coming weeks with a view to resolving the remaining issues. It is important to consider the steps you can take to build a relationship of mutual trust and confidence – as you know Anna since you helped us structure this.
Although we knew that we would receive grievances, we were taken by surprise by the large number of grievances received by the OGM. This led to a backlog in cases. We are seeking to respond to this by creating streamlined processes for certain cases so that they can be dealt with in an expedited and/or collective manner.
Because of this delay, coupled with the high expectations of the mechanism following on from the community consultation, we have sought to place particular emphasis on regular community engagement throughout the life of the mechanism to manage expectations around time frames.
Anna Triponel: Thanks very much Toby for sharing the journey with us, and, as Toby mentioned, we welcome hearing from others as part of the discussion.