Report from a session at the United Nations Sixth Annual Forum on Business and

Human Rights, 28 November 2017

Access to Remedy Through

Multi-Stakeholder Engagement
Insights from cases in Myanmar and South Africa

Report published: July 2018

This report provides insights from two case study-based sessions entitled ‘Access to Remedy Through Multi-
Stakeholder Engagement’, which took place on 28 November 2017 as part of the sixth annual UN Forum on Business
and Human Rights (the Forum). The Global Business Initiative on Human Rights (GBI) and the Business & Human Rights
Resource Centre (BHRRC) have released this report in their capacity as co-organisers of the session, alongside the
UN Working Group on Business and Human Rights, which submitted a separate commentary on the sessions as part
of its report to the UN Human Rights Council in 2018. The sessions aimed to explore multi-stakeholder perspectives
and experiences on specific case studies on realising and delivering access to remedy in local contexts. The Forum
continues to provide a critical space for stakeholders to share progress and practices, as an aid to peer learning and
to establishing the state of play of implementation on the ground.

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CONTENTS

1 : OVERVIEW AND INSIGHTS ....................................................................................................................................................................... 2

What the sessions achieved .......................................................................................................................................................................... 2
High-level observations on multi-stakeholder panels – 2014-2017 ................................................................................ 3

2 : CASE STUDIES ..................................................................................................................................................................................................... 4

Multi-stakeholder perspectives on access to remedy for people affected by the Thilawa Special
Economic Zone in Myanmar ............................................................................................................................................................................. 4
Key insights from the session ............................................................................................................................................................................ 5
Past actions and next steps .................................................................................................................................................................... 7
Thilawa case study background ................................................................................................................................................... 8

Multi-stakeholder perspectives on access to remedy: The establishment of an independent

problem-solving service for communities affected by mining operations in South Africa ..................... 10
Key insights from the session ...................................................................................................................................................................... 11
Actions and next steps ............................................................................................................................................................................. 12
Independent Problem Solving Service background ....................................................................................................... 12

Annex: METHODOLOGY ...................................................................................................................................................................................... 14

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1 : OVERVIEW AND INSIGHTS

This report provides insights from two case study-based sessions entitled “Access to Remedy
Through Multi-Stakeholder Engagement”, which took place on 28 November 2017 as part of the
sixth annual UN Forum on Business and Human Rights (the Forum). The Global Business Initiative
on Human Rights (GBI) and the Business & Human Rights Resource Centre (BHRRC) have released
this report in their capacity as co-organisers of the sessions, alongside the UN Working Group on
Business and Human Rights, which is submitting a separate commentary on the sessions as part
of its report to the UN Human Rights Council in 2018. The sessions were televised in full on UN
TV and can be viewed here.
The sessions featured two case studies of multi-stakeholder action on realising access to remedy:
• access to remedy for people affected by the Thilawa Special Economic Zone in Myanmar; and
• an independent problem-solving service for communities affected by mining operations in
South Africa.
Insights from the panels and interaction with the audience, together with a full background, are
given in Section 2 of this report.1

WHAT THE SESSIONS ACHIEVED

The focal point and aim of the sessions was to demonstrate practice and innovative responses around
the complex realities of implementation of the third pillar of the UNGPs where multiple parties are involved
in remedial efforts. Understanding the opportunities, and challenges, in such approaches is essential to
their success and to the evolution of the Business and Human Rights agenda in the coming decades.
Key to this approach is an understanding that for the UNGPs (and B&HR movement) to succeed, all three
pillars of the ‘Protect, Respect and Remedy’ Framework must be implemented, and be implementable in
practice, including at the local level.
Although the sessions at the Forum provided only a snapshot and current state of play for each of the
case studies, the process of formulating these multi-stakeholder sessions with the parties, coupled with
two-way interaction and exposure to others from impacted communities, international practitioners and
experts on the day, sets the value of conducting the panels far beyond what might be anticipated from
a traditional panel format. In practice this is demonstrated by reports from panellists that participating in
the panels assisted with the process on the ground by:
• Bringing together all the parties around the same table – in some cases for the first time – which both
opened the way for and progressed dialogue and greater understanding. It brought the parties ‘up to
speed’ on where each perceived the processes to be, and where remaining challenges lie. Some of
the parties have arranged further discussions as a result of the sessions.
• The need for panellists to clearly frame their remedial efforts or the impacts experienced by their
communities for the Forum audience gave greater clarity and focus to the aims and ultimately intended
outcomes of the processes underway.
• For those less familiar with the discourse of business and human rights, exposure to the Forum and
the UNGPs aided understanding of normative expectations and clarified obligations between parties.

1
For an account of the methodology employed to select the cases and prepare for the sessions, please see Annex at page 14.

2
• For some, in both the panels and in the audience, they heard for the first time the extent and nature of
differential impacts on the human rights of different parties, thus providing a new or deeper understanding
of the differing requirements necessitated to provide effective remedy to all impacted parties.
• For some panellists, excellent connections were made with others working on similar remedial mechanisms
or in similarly challenging contexts, and they are now in contact to share their experiences and insights.

Comments from experts, practitioners and representatives of communities provided invaluable inputs from
the floor to guide panellists in their work, for example, by drawing out the difference between ‘development’
and ‘remedy and reparations’ for the initial harm, and of the need to remain cognisant of when remedy
should be considered at community level, and when provision of remedy to an individual is appropriate
and effective. Audience members also asked advice of the panel, for example one mining company asked
a community representative to help them understand how best to engage and empower the community
in redesigning a grievance mechanism and in understanding how best to deal with conflicting interests
of different community members.

These panels ... seem to demonstrate

that we can have constructive dialogue at this
Forum and I’m very delighted to see it happen
– even if it means that we disagree on some
of the issues – I think that’s a very positive
development.
Michael Addo, Chair, UN Working Group on
Business and Human Rights

HIGH-LEVEL OBSERVATIONS ON MULTI-STAKEHOLDER PANELS – 2014-2017

In preparation and to enhance the opportunity for dialogue on multi-stakeholder approaches to remedy at
the Forum in 2017, GBI and BHRRC prepared a blog entitled “Effective Remedy: The power and pitfalls of
multi-stakeholder engagement”, which was published online for the 2017 UN Forum blog series, hosted
by the Cambridge Business and Human Rights Journal.2 It focussed on how multi stakeholder approaches
can be used to realise effective access to remedy for victims of business-related human rights abuses,
and illustrated some of the lessons learnt from past panels and research. The blog highlighted that:
• Effective engagement involves all parties at the table, with rights- holders at the centre.
• It takes effort and time and there is no one-size-fits-all solution.
• Three is still the magic number. Implementation of all three pillars of the UNGPs is needed to ensure
effective remedy.
• It can be complex – it is inevitable that conflict will arise and there is value in becoming comfortable with
the complexity and time required for operationalising multi-stakeholder remedial initiatives in practice.

2
Reports are available here (http://www.global-business-initiative.org/wp-content/uploads/2016/08/Respect-in-Practice-Report.pdf)
and here (http://www.global-business-initiative.org/wp-content/uploads/2016/08/UN-Forum-2015-Multi-Stakeholder- Engagement-
Full-Report-GBI-BHRRC1.pdf).

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2 : CASE STUDIES

Multi-stakeholder perspectives on access to remedy for people affected

by the Thilawa Special Economic Zone in Myanmar

Panellists

Phil Bloomer, Executive Director, Business & Human Rights Resource Centre (Moderator)

Daw Ai Ai Khaing, General Administration Department of the Yangon Southern District

Tomoyasu Shimizu, CEO, Myanmar Japan Thilawa Development Limited (MJTD)

Masayuki Karasawa, Chief Representative, Japan International Cooperation Agency (JICA)

Daw Than Ei, member, Thilawa community-driven operational level grievance mechanism
(CD-OGM) Design Committee and affected community member

U Tin Latt Ye, Representative of affected community of Thilawa SEZ & of Thilawa
Coordination Committee

Katherine McDonnell, Legal Advocacy Coordinator, EarthRights International

Michael Addo, Chair, UN Working Group on Business and Human Rights

ABOUT THE SESSION

The Thilawa special economic zone (SEZ) 23 km southeast of Yangon is the first SEZ to be established by
the Myanmar Government. The Zone is being developed in cooperation with the Japanese Government.
This panel explored approaches by key stakeholders to ensure access to remedy for people affected by
the development of the Thilawa SEZ. The session also aimed to:

• Explore how effective access to remedy is linked • Explore lessons learned and plans for
with the economic and social development for strengthening remedy mechanisms in Thilawa
local communities; moving forward; and
• Increase understanding of the practical complexity • Surface lessons learned and other examples of
of implementing access to remedy and the innovative approaches for realising access to
experiences of key stakeholders in the case of remedy from participants.
the Thilawa SEZ;
A full description of the case is given on page 8.
• Share the process of designing a community-
driven operational grievance mechanism;
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KEY INSIGHTS FROM THE SESSION

• Access to remedy for people negatively affected by business operations is usually hindered by
inequality of power between companies and government on the one hand, and communities
or organisations on the other. In these cases, it takes vision, self-reflection, and an understanding of
these dynamics from the powerful actors to shape the process to achieve remedy in ways that include
the voices, needs, and solutions of those most affected and with the least access to power. This
inclusive approach can bring benefits to all parties: the community is fairly treated, and the investment
and project gain stability and goodwill through a strong social license to operate.
• People are often affected differently by business operations and some may face additional
barriers to access remedy. This is the case with the Thilawa SEZ, where some families have
experienced loss of land, livelihoods, educational opportunities and access to adequate clean water
due to relocation, while other people affected by the project have benefited. However, even if the
majority of people benefit, those who have been negatively impacted still have the right to access
remedy. Equitable, transparent and accessible grievance mechanisms should be developed through
inclusive processes with opportunities for representatives from all affected communities to engage in
order to ensure that their diverse experiences, perspectives, and solutions are reflected in the design
of the grievance mechanism, so that it will be more effective.
• Effective access to remedy usually involves early and upstream efforts to build an inclusive
mechanism that puts affected communities at the centre of the process. Transparent, inclusive,
and respectful dialogue between all stakeholders will significantly contribute to the project’s success – by
building trust and helping to ensure that everyone can benefit from the project. Developing and implementing
remedy mechanisms is an iterative process, that involves ongoing learning and modifications to ensure
that the mechanisms best meet the needs of the people most affected. Some groups argue that this
did not happen in Thilawa and that it has taken years for a grievance mechanism to be discussed. Most
groups agree that there is still an opportunity to build that trust and create an effective mechanism.
• In the case of the Thilawa Special Economic Zone (SEZ), there is agreement among key
stakeholders that this project needs to provide effective remedy for those negatively affected.
Diverse approaches are being taken and all parties see the need for dialogue and to learn from previous
experience to enhance access to remedy. Stakeholders also agree the SEZ could generate important
economic benefits for local communities. The stakeholders represented on the panel are taking steps
to support affected community members, such as creating new jobs, providing vocational training
for some people who lost their livelihoods due to the project, and strengthening healthcare. This type
of development support is important, yet at the same time, it does not eliminate the need to provide
effective access to remedy. This type of support must also come from meaningful engagement with
the proposed recipients, in order to ensure that it meets their diverse needs.

We have improved aspects of the

process aligned with the UNGPs, specifically
Article 31, for example, we rely more on
dialogue between the complainants and the
responsible parties and introduced common
formats of data and information which will
be used for compliance and sharing with the
public for more transparency.
Masayuki Karasawa, Chief Representative, Japan
International Cooperation Agency (JICA)

5
 We tried many different ways to get In line with the UNGPs, we
remedies and felt we were being ignored and will continuously make efforts for the
neglected. That’s why in early 2015 we met compliant management procedure
with local ERI and studied CD-OGM system to be formalised in collaboration with
and decided to form the committee... At the affected communities ... Transparency
end of 2016 we finished the design. In 2017 and accountability are very important
we held meetings with communities... so that to secure trust and make more
they could understand, since the design is for informed decisions.
everyone and it is important that all participate. Tomoyasu Shimizu, CEO, Myanmar Japan
At the same time, we tried to meet with MJTD, Thilawa Development Limited (MJTD)
JICA and TSMC to seek advice because we
understand the importance of agreement from
those who implement this project.
Daw Than Ei, member, Thilawa community-
driven operational level grievance
mechanism (CD-OGM) Design Committee
and affected community member

With MJTD and JICA, we have been It’s great to hear that now the
working to strengthen our existing complaints stakeholders want to implement a
management processes in a systematic, systematic remedial process. [But] it’s
realistic, and practical way... We have tried to a little disheartening that it’s taken ...
solve complaints, concerns, and requests for 4 years after resettlement, to come to this
local development by meeting with people idea, while it’s been something that’s been
at community meetings, inside villages, at promoted to them since early 2015.
resettlement sites, and by phone. Katherine McDonnell, Legal Advocacy
Daw Ai Ai Khaing, General Administration Coordinator, EarthRights International
Department of the Yangon Southern District

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PAST ACTIONS AND NEXT STEPS

• All speakers noted the importance of increased dialogue and transparency about access to remedy in
Thilawa.
• In December 2016, Design Committee members shared their CD-OGM proposal for Thilawa.
• Following a consultation with numerous stakeholders conducted in October 2017, Japan International
Cooperation Agency (JICA), Myanmar Japan Thilawa Development Limited (MJTD), and the Thilawa
SEZ Management Committee (TSMC) streamlined their existing complaints mechanisms into one
process. Following the Forum session in November 2017, the Thilawa Management Committee (TSMC)
and Myanmar Japan Thilawa Development Limited (MJTD) launched a draft version of this separate
mechanism, the Thilawa Complaints Management Procedure (TCMP).
• In early February 2018, the Thilawa CD-OGM Design Committee members sent a formal response
to MJTD about the TCMP, requesting that negotiations to be initiated in order to agree on a better
grievance mechanism and a meeting to discuss the best solution.
• Since February 2018, the Design Committee has met with the stakeholders and will continue to do so
to try and come to a compromise on an improved grievance mechanism.
• In early February 2018, EarthRights International published an analysis of the TCMP with its views about
the procedure’s shortcomings in light of international business and human rights norms.
• In March 2018, the TSMC and MJTD published a second version of the TCMP.

The local community feels that the

implementation of the Thilawa SEZ is like
the occurrence of “Padethar Pin” in Myanmar
language which is something like a tree from
which people can get whatever they want that
is necessary for their livelihoods, for example
food, clothing, and a place to live.
U Tin Latt Ye, Representative of affected
community of Thilawa SEZ & Thilawa
Coordination Committee

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THILAWA CASE STUDY BACKGROUND

The Thilawa SEZ, located 23 km southeast of Yangon, is the first large-scale SEZ in Myanmar. The Zone,
which is 2,400 hectares (ha) in total, is being developed in phases under Myanmar Japan Thilawa Development
Ltd. (MJTD), a public-private partnership joint venture initiated by Myanmar and Japan. The first Zone A
development, 400ha for mainly industrial use, started in late 2013, and over 30 factories are now operational.
The second Zone B, 262 ha for industrial use, has been split into several areas for gradual development.
An updated joint venture agreement of MJTD which includes the first area of Zone B was signed in October
2016, and construction started in early 2017. Negotiations with stakeholders are currently underway for the
next area in Zone B.

Manufacturing and services investors in the SEZ are offered certain tax and export privileges, superior
infrastructure and a ‘one-stop service centre’ that provides services ranging from company incorporation
to visa applications. There are currently nearly 90 investors in the Thilawa SEZ, with many more anticipated
for Zone B. Investments to date come mainly from Japan, China, USA, and Thailand in sectors that include
manufacturing of garments and toys, steel products, radiators, aluminium cans, packaging and waste
management. The Myanmar Government estimates 30,000-50,000 direct employment opportunities in
Zone A and B.

The legal framework for SEZs, and its relationship to other Myanmar law, is still evolving, but the Government’s
stated intention since the beginning has been that the Thilawa SEZ should be developed in accordance with
international environmental and social safeguard standards. Thilawa SEZ Management Committee (TSMC)
is in charge of governance of the entire Zone.

Zone A affected 81 households, 68 of them relocated in late 2013 by the Myanmar Government to a site
4.5-8 km away. Some relocated villagers and civil society organizations were critical of the relocation process
and the site, as it had a number of infrastructure problems early on, some of which have since been resolved.
Three members of the community supported by Earth Rights International and a Japanese NGO submitted
a complaint to the Japan International Cooperation Agency (JICA)’s Independent Examiners in June 2014
concerning non-compliance with the 2010 JICA Guidelines for Environmental & Social Considerations in
relation to Zone A resettlement. Concerns included in the complaint letter were: loss of farmland and/or access
to farmland; loss of livelihood opportunities; impoverishment; loss of educational opportunities; substandard
housing and basic infrastructure; loss of access to adequate clean water.

While recognising some of the concerns, the JICA Examiner’s November 2014 report did not find non-
compliance with JICA’s Guidelines. It did recommend improved dialogue and communication among
stakeholders and further improvements in living conditions at the relocation site and the Examiners conduct
follow up visits to assess whether the recommendations have been followed. The report’s findings were
criticised by the Thilawa Social Development Group, a community-based organisation that was formed by
some affected community members, and some civil society organisations, although they welcomed the
recommendation for more dialogue.

The SEZ-Zone B development affected 108 households in early 2017 and 90 of them were relocated after
May 2017 by the Myanmar Government to the same site as Zone A. Based on lessons learned from the
experience of the Zone A and another resettlement program conducted in Thilawa, as well as engagement
with affected communities, the relocation site was developed with input from and in collaboration with people
who were relocated.

Communities and people affected by the project have sought remedy through various means, including
direct engagement with the Government of Myanmar and other stakeholders, and letters to government
departments and officials at various levels. This session explored several approaches by key stakeholders
to ensure access to remedy for people affected by the development of the Thilawa SEZ.

8
INVESTORS

Thilawa SEZ Management Committee (TSMC) (http://www.myanmarthilawa.gov.mm/) is in charge of

governance of the Zone as well as representing the Myanmar Government’s 10% share in MJTD (see below).
It comprises representatives of government departments including construction, planning and finance,
Commerce, etc and the Yangon Regional Government. The TSEZ MC website includes the Resettlement
Work Plan for Zone A and Notice 4/2015 on responsible business conduct in the Zone.

Myanmar Japan Thilawa Development Ltd (MJTD) (www.mjtd.com.mm) is the Developer of the SEZ in
Zone A and B. It was formed in January 2014 as a joint venture company between MTSH, MMSTD (see
below), TSEZMC and JICA (see below). MJTD recently joined the UN Global Compact.

Japan International Cooperation Agency (JICA) (www.jica.go.jp) is the implementing agency of Official
Development Assistance (ODA) of the Government of Japan. It has a 10% share in MJTD. It provides technical
support for the project to the Myanmar Government by dispatching Expert Team, through preparing the RWP
and IRP, and strengthening social performance and community relations including stakeholder engagement
and complaint management.

GOVERNMENTAL ACTORS

Yangon Regional Government is in charge of planning and implementing land acquisition, resettlement
and income restoration program at Thilawa SEZ development project.
Thilawa SEZ Management Committee (TSMC) Please see above.
Japan International Cooperation Agency (JICA) Please see above.

NON-GOVERNMENTAL ACTORS

Thilawa Social Development Group (TSDG) is a community-based organisation that was formed by the
communities affected by Phases 1 and 2 of the Thilawa SEZ. The members of TSDG were selected by the
communities to collaborate with local and international NGOs to advocate for the rights of local communities.
See: A foreseeable disaster in Burma: Forced displacement in the Thilawa SEZ, November 2014, by Physicians
for Human Rights, Mekong Watch and TSDG.

Earth Rights International (ERI) (www.earthrights.org) is a nongovernmental, non-profit organisation that

combines the power of law and the power of people in defense of human rights and the environment. It
specialises in fact-finding, legal actions against perpetrators of earth rights abuses, training grassroots and
community leaders, and advocacy campaigns. ERI has worked with the communities in Thilawa since 2013.
See Analysis of EIA for Phase 1 of Thilawa SEZ, November 2014; Community Rights & Remedies under
Myanmar Law & JICA’s Guidelines: A Briefer, November 2014; “Experts Help Communities Take Control of
Justice”, March 2015, available at http://bit.ly/1Ryz9nG.

Myanmar Centre for Responsible Business (MCRB) (www.mcrb.org.mm) is a multi-donor initiative

established in Yangon in 2013 by the Institute of Human Rights and Business and the Danish Institute for
Human Rights that aims to provide a trusted and impartial platform for the creation of knowledge, capacity,
and dialogue amongst businesses, civil society organisation and governments to encourage responsible
business conduct throughout Myanmar. In late 2014, the Myanmar Centre for Responsible Business (MCRB),
with the JICA Expert Team, facilitated the formation of a Multi-stakeholder Advisory Group (MSAG), a forum
for dialogue and coordination among various stakeholders, which continued for 18 months.

9
Multi-stakeholder perspectives on access to remedy: The establishment
of an independent problem-solving service for communities affected by
mining operations in South Africa

Panellists

Katryn Wright, Director, Global Business Initiative on Human Rights (Moderator)

Mmathapelo Thobejane, Community Representative

Tebello Chabana, Senior Executive: Public Affairs & Transformation Chamber of Mines South Africa

John Capel, Executive Director, the Bench Marks Foundation

Michael Addo, Chair, UN Working Group on Business and Human Rights

ABOUT THE SESSION

This panel focussed on an example of an innovative and in-progress approach to remedy from the
perspectives of different stakeholders. A new Independent Problem-Solving Service (IPSS) for affected
communities in mining areas in South Africa is currently being created by the Bench Marks Foundation.
The service will focus on facilitated dialogue and developmental solutions, and seeks to independently
facilitate sustainable solutions in the context of fraught histories, the absence of trust between business
and communities and systemic human rights challenges. The session also aimed to:
• Demonstrate an innovative and unique example of an NGO leading a multi-stakeholder, collaborative
process to solve company-community challenges at local levels;
• Highlight the value of independent mechanisms that have the buy-in of the main stakeholders concerned;
• Emphasise the need for independent services formulated through consultative processes – while not
excluding the voluntary use of company-led grievance mechanisms where communities have sufficient
trust in them; and
• Engage in two-way dialogue between the panel and the audience. The Bench Marks Foundation showed
an eagerness to connect with experts and the experiences of others as they design this process.

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KEY INSIGHTS FROM THE PANEL

• The status quo is not working for anyone. Communities are frustrated and often do not see the
benefits of mining. Companies do not benefit from protests outside the mine gates and community
disruptions. There is a legacy of unmet expectations, inequality and poverty that needs to be transformed
for the benefit of everyone involved. Company-community relations are deteriorating, and this must be
addressed.
• Independent mechanisms to resolve problems and grievance mechanisms can be hugely
valuable in vexed contexts. There is a significant trust deficit between companies and communities
in mining areas in South Africa. Company-led grievance mechanisms are often under-utilised – a point
that was echoed by a mining company representative in the audience – or not designed with community
needs in mind. Legal mechanisms are often out of reach for poor communities and may not be fit-
for-purpose for smaller grievance mechanisms. Independent mechanisms could transform the status
quo. The speakers and audience highlighted several critical success factors including: the levelling of
unequal power dynamics; a need to focus on process as much as outcome; use of facilitated dialogue;
and the necessity of mechanisms to be truly independent and credible.
• Connections are made at the UN Forum. The UN Forum presents a unique opportunity for people
from around the world, focusing on different industrial sectors and country contexts to come together
and learn from each other’s work. The panel itself was an opportunity for key stakeholders to meet,
discuss where they are aligned on what the challenges are and explore solutions and ways forward
together. Another important connection was made between the Independent Problem Solving Service
and the Coalition of Immokalee Workers around their experiences with the Fair Food Program and
complaint resolution system.

We as communities are afraid It takes a leap of faith from both

because we know that the companies sides to enter into this process There are two
may not even consider the Independent fundamental problems. Communities lack
Problem Solving Service. We know access to justice and lack the ability to organise
that there are company grievance themselves to engage mining on a level footing
mechanisms that we need to follow but – so we’re dealing with skewed power relations.
as communities we find it very difficult We find that industry and corporations we
because they require experts. You often engage with say to us in principle they think
need some technical evidence that the IPSS is a good idea, but they are used to
we as communities don’t have. a practice where they use tribal authorities
Mmathapelo Sebotse Thobejane, and the local chief to obtain consent. That’s
Community Representative much easier than dealing with a whole lot
of differently impacted parties and different
interest groups within communities.
John Capel, Executive Director,
the Bench Marks Foundation

11
 The situation continuing as it is, is
not in anybody’s favour... It is important that
companies go back to basics – ensure that
they have grievance mechanisms and that
they are effective. Companies need to get back
to the basics of engaging their stakeholders
on a regular basis and move away from
acrimonious relationships.
Tebello Chabana, Head of Public Affairs and
Transformation, Chamber of Mines South Africa

ACTIONS AND NEXT STEPS

• The panellists agreed to work together on solutions. This included suggestions of more meetings
between the Independent Problem Solving Service and industry to test the mechanism and contribute
to its robustness.
• The Independent Problem Solving Service also requested further conversations with representatives of
the Coalition of Immokalee Workers to understand more about their process and experiences in setting
up a widely recognised and successful process to address human rights risks and process grievances.

INDEPENDENT PROBLEM SOLVING SERVICE BACKGROUND

The Chamber of Mines has reported that at least three protests per day take place around mining operations.
Fraught relations between mining companies and communities represent a microcosm of the daily struggles
of many in South Africa. In the mining sector, communities face a multitude of challenges, whether access
to water, land, and community health and wellbeing or livelihood impacts.

The Bench Marks Foundation (a South African NGO) is working to establish a rights-based problem-solving
service that affected communities can utilise in mining areas in South Africa focused on facilitated dialogue and
developmental solutions. The proposed service seeks to independently facilitate sustainable solutions in the
context of fraught histories, the absence of trust between business and communities and systemic challenges.

The service comprises a process of facilitated dialogue, followed where necessary by processes drawn from
a ‘toolbox’ of components for each specific case. The scope of the service is expansive, encompassing any
community grievance, though these are likely to concern health, housing, livelihoods, pollution or water. It
is multi-faceted and includes both reactive and proactive elements including ongoing monitoring and early
interventions, community awareness raising and continuous engagement with mining companies.

For many years, Bench Marks has been looking at the issues of access to fairness, justice and balancing
out the unequal power relations between mines and communities. Originally Bench Marks proposed an
independent grievance mechanism, but after much thought and analysis, decided a more holistic approach
was needed to deal with the crisis in the mining sector. Thus, the concept of a holistic problem-solving service
emerged, called the independent problem-solving service (IPSS), backed up by an independent capacity
building fund (ICF). The ICF will address skewed power relations, giving communities access to specialist
advice on the one hand, and training company sustainability officers to engage communities with care and
respect on the other.

12
Bench Marks is currently in a consultative process with communities and civil society regarding the IPSS
and the ICF. Discussions have also begun with the business community, including the Chamber of Mines. In
addition, academics have also been approached for their input.

The IPSS has a ‘toolbox’ of problem solving components, with facilitated dialogue at its centre. If this does
not resolve the problem, several further options are available, including a formal grievance hearing, mediation
and or expedited arbitration. The approach is flexible, allowing the case to be diagnosed, and identifying the
best approach to be used. Importantly, the IPSS does not remove any rights of parties in law, allowing for
judicial and other interventions as well. The emphasis is on dialogue, as opposed to a more rigid grievance
mechanism approach, and is informed by both local and international experience, pointing to facilitated
dialogue being a more conducive form of engagement for problem solving. Of great importance is that
dialogue will be driven by suitably skilled and impartial facilitators, considering the complexities and challenges
involved, including skewed power relations.

The core objective of this initiative is the restoration and maintenance of human dignity. It requires a mindset
shift at both company and community level. Trust in the process is a prerequisite. It is a service with many
facets. It involves both pro-active and reactive components, with a process specifically designed for each case.
It prioritises a non-legalistic, non-adversarial, accessible and empowering process, with facilitated dialogue at
its centre. It aspires towards sustainable, developmental solutions which go beyond rights-based remedies.

CONCLUDING REMARKS

In his concluding remarks to the sessions, Michael Addo, Chair of the UN Working Group on Business
and Human Rights noted:

What I picked up from these two panels is what the working group put into its report to
the General Assembly – there is a place for an independent remedial service – an independent
remedy – but it should be seen as part of what the report calls a bouquet of remedies. A bouquet
of remedies increases the chances of effective remediation. The idea, therefore, is to begin to
figure out when the time is right for using the community grievance mechanism or company
grievance mechanism or indeed an independent mechanism, or even going for the state non-
judicial mechanism or whether you should go for a judicial mechanism.

13
ANNEX: METHODOLOGY

The methodology used to select the case studies reflected the intention for a high level of ambition around
the panels and corresponding case studies. The criteria applied for selection included identifying:
• Non-judicial mechanisms at different stages in a remedial process (e.g. complete, in progress,
being innovated/designed);
• Cases that highlight a diversity of potential remedial outcomes – restorative (apology, rehabilitation,
restitution), compensatory (financial, non-financial compensation), retributive (punitive criminal or
administrative sanctions), deterrence (preventative injunctions of guarantees of non-repetition); and
• A range of human rights impacts from diverse industries and geographies.

The principles guiding the session design and delivery included ensuring that each panel and case study
should:
• Be multi-stakeholder,3 credibly featuring and reflecting the voices and perspectives of the business
concerned, the people impacted or that use the mechanism (or their legitimate representatives where/if
appropriate) and other actors involved in the same case study (e.g. government, financial institutions),
thereby embracing different perspectives and experiences;
• Draw on lessons learnt and observations that have the potential to be relevant and replicable in
other contexts;
• Highlight the value of innovative and collective action to solve complex, often systemic,
challenges; and
• Reinforce the value and complementarity of all three pillars of the UNGPs.
From an initial scoping of 15+ possible cases, the South Africa IPSS and Thilawa SEZ in Myanmar cases
were selected in consultation with the Forum Secretariat for further exploration at the Forum.4

3
Whilst multi-stakeholder action can be impactful, collaboration and collective problem-solving efforts should not undermine human
rights, nor excluding access to judicial mechanisms.
4
In line with any guidance provided by the Forum Secretariat and independently, the Resource Centre and GBI gave due consideration
in each case study to any perceived sensitivities, issues of confidentiality, and potential unintended consequences or impacts on
the parties and remediation process to which the case study pertains.

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Business & Human Rights Resource Centre Global Business Initiative on Human Rights
2-8 Scrutton Street, 2nd floor, London, 19c Commercial Road, Eastbourne,
EC2A 4RT, UK East Sussex, BN21 3XE, UK

contact@business-humanrights.org jo.reyes@@gbihr.org
www.business-humanrights.org www.gbihr.org

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