Global Condemnation of Barrick’s Effort to Secure Legal Immunity from Rape Victims

June 4, 2013 | By admin | Filed in: Barrick GoldPapua New GuineaPorgera Mine - BarrickCorporate Social ResponsibilityHuman Rights.

For many years Papua New Guineans, with the support of
MiningWatch Canada and other international organizations, have
demanded that Barrick Gold
acknowledge a long-standing pattern of vicious beatings, rapes
and gang rapes of local indigenous women by security guards at
the Porgera Joint Venture (PJV) mine, operated and 95% owned by
Barrick. [1]
After years of denial in the face of mounting evidence, Barrick
finally acknowledged the rapes. In October 2012, Barrick
started to implement a project-level non-judicial procedure to
deal with hundreds of alleged victims of rape by the PJV mine’s
security guards.[2]

In November, 2012, MiningWatch Canada was provided a copy of
Barrick’s remedy
framework
(not by Barrick). The remedy framework raised
serious concerns about the benefits package being offered to
rape victims, which focuses on income generating
projects,[3] the
claims process itself, and the requirement that women who
accept an individual benefits package must sign a legal waiver
that precludes them from suing Barrick on the issues covered by
the non-judicial process:

“the claimant agrees that she will not pursue or
participate in any legal action against PJV, PRFA [Porgera
Remediation Framework Association Inc.] or Barrick in or
outside of PNG. PRFA and Barrick will be able to rely on the
agreement as a bar to any legal proceedings which may be
brought by the claimant in breach of the agreement.

On May 14, 2013, 77 organizations from around the world
sent a
letter to the United Nations High Commissioner of Human
Rights
to protest the fact that rape victims will only
receive individual benefit packages through Barrick’s
non-judicial process if they grant Barrick legal immunity from
future civil action. (Since the letter was sent, additional
organizations have signed on. MiningWatch Canada will continue
to update the sign-on list on our web site.)

Background

MiningWatch Canada has engaged with local Papua New Guinea
organizations Akali Tange Association (ATA) and Porgera
Landowners Association (PLOA) in Porgera over mining-related
human rights and environmental issues since 2005. One of the
issues that have been of serious concern has been the issue of
the rapes of local women by mine security guards.

MiningWatch has supported the visits to Canada of leaders of
ATA and PLOA between 2008-2011, and MiningWatch’s Catherine
Coumans made two visits to Porgera, in 2008 and 2009. During
one of these visits she interviewed rape victims. Findings
resulting from these exchanges were made public in various ways
including through public letters to UN Rapporteurs, press
releases, background documents, a report to a Parliamentary
committee, and in a complaint to Canada’s
National Contact Point for the
OECD Guidelines for Multinational Enterprises
.

While Barrick’s recent acknowledgement of the rapes by mine
security guards was a positive development, MiningWatch
denounces Barrick’s use of a non-judicial process to secure
legal immunity for the company from potential suits brought by
the women.

In January, 2013, MiningWatch, together with Rights and
Accountability in Development (RAID) and EarthRights International
issued a
press release
and supporting documents protesting the fact
that rape victims are being asked to sign away their right to
legal recourse in return for a benefits package they may
receive through Barrick’s non-judicial process. Barrick’s
response was to publicly defend its requirement of a legal
waiver, including on CBC Radio’s
As It Happens
.

In March, 2013, MiningWatch’s Catherine Coumans travelled to
Porgera in Papua New Guinea to assess the claims process first
hand. From March 5-10 she conducted interviews with alleged
rape victims. Nine of these interviews were in depth, of which
two were with women who had already entered Barrick’s claims
process. She was also able to gather information on the
experiences of other women in the claims process who she did
not interview in depth. This field assessment of the claims
process led to more detailed concerns regarding, among others,
transparency of the process, the type of benefits that were
being offered, the level of understanding of the process by
women entering the process, and the requirement for legal
waivers should a rape victim accept a benefits package. We have
detailed these concerns in
letters to the United Nations High Commissioner of Human
Rights
(UNHCHR) (March 19, April 2, and May 14, 2013), and
has responded to Barrick’s own letters to UNHCHR and web
postings in response to our concerns.

Barrick reacts to criticism

On April 16, Barrick announced
on its web site
that it had changed the language of the
legal waiver: “Further, the language MWC [MiningWatch Canada]
purports to quote from the model agreement derives from an
early draft; the present version contains much narrower terms.”

In spite of repeated requests by MiningWatch, including at
Barrick’s Annual General Meeting on April 24, Barrick did not
provide a new text related to the legal waiver, eventually
replying that this text was “undergoing final revisions.” On
May 16, two days after the organizational sign on letter
protesting Barrick’s legal waiver requirement had been sent to
the UNHCHR, Barrick released a new text related to the legal
waiver. The
new text
reads:

The Claimant agrees that, she will not pursue any claim
for compensation, or any civil legal action that relates to the
event(s) giving rise to the remedy claim, against the Porgera
Joint Venture, PRFA or Barrick in Papua New Guinea or in any
other jurisdiction. This limitation expressly excludes any
criminal action that may be brought by any relevant state,
governmental or international regulatory entity
.

This new text deals with what was described to us by a Papua
New Guinean human rights expert as legal and constitutional
concerns regarding Barrick’s original legal waiver – stemming
from the fact that the original text did not respect the Papua
New Guinea state’s authority to bring criminal charges and call
witnesses, which may include rape victims who have received a
benefits package through Barrick’s non-judicial process.

The new text, however, still requires that rape victims who
accept an individual benefits package through Barrick’s
non-judicial process sign a legal waiver that grants Barrick
legal immunity from law suits (civil suits) brought by the
victims themselves.

Not “best practice”

In its
letters to the UNHCHR
(March 19, April 2), we provided
examples of non-judicial remedy programs that explicitly do not
require claimants to give up their rights to future legal
action: in particular the Hokie Spirit Memorial Fund at
Virginia Tech and victim’s compensation schemes in Australia
that provide for the payment of compensation by the government
to victims of serious crime, as assessed by an independent
tribunal.

These schemes provide important and relevant principles. Both
cases recognize that the awards provided through non-judicial
schemes may not reflect the level of compensation to which
victims may be entitled under common law.[4] This is also the case in regard to
the remedy packages Barrick is offering rape victims in Porgera
based on the information in the remedy framework document and
interviews conducted by MiningWatch.[5] Furthermore, the Australian case
provides another relevant principle, namely that compensation
provided through a non-judicial mechanism may be made subject
to a condition that the compensation be repaid from any
subsequent award of damages in subsequent legal proceedings.
This provision avoids so-called “double-dipping,” which Barrick
originally claimed
(on CBC)
as a reason for requiring a legal waiver.

Conditioning remedy on securing immunity: What is at
stake and where
is John Ruggie?

The women who have endured brutal assaults, beatings, rape and
gang rape by security guards at Barrick’s gold mine are
overwhelmingly poor, marginalised and have low levels of formal
education. The rapes have further marginalised and impoverished
them. These women have suffered a gross violation of human
rights.

Corporate project-level remedy processes do not have any legal
status, do not necessarily afford victims the safeguards and
protections of a court of law – such as independent legal
counsel – and are not required to provide remedy that would be
commensurate with what victims may receive through a legal
process. They may also take place in very remote locations such
as the Highlands of Papua New Guinea with little or no
independent scrutiny. There is no global assurance system for
the operation of these corporate non-judicial mechanisms.

Barrick claims that its non-judicial claims process conforms to
the
United Nations Guiding Principles on Business and Human
Rights
and references the primary author of the Guiding
Principles, John Ruggie, in its remedy framework. John Ruggie
is also a Special Consultant to Barrick’s Corporate Social
Responsibility Advisory Board. We
have demonstrated
that Barrick’s claims process fails to
meet the “effectiveness criteria” outlined in the Guiding
Principles. Importantly, the Guiding Principles do not condone
the use by a corporation of a non-judicial remedy process as a
means to secure legal immunity for the company from future
civil action by the victims. However, Ruggie has failed to
speak out on this issue and has not responded to our questions
as to his stance on Barrick’s conditioning of remedy on
receiving legal immunity.

While MiningWatch believes that Barrick should offer
compensation for the harm that has been caused by its security
guards, there should be no conditionality attached to the offer
of remedy. A remedy package should be offered to compensate for
a harm that has been suffered; it should not be used as a
transaction of value. The remedy process should not be used as
a vehicle by which to secure legal immunity for Barrick Gold.
Nor should Barrick’s non-judicial process for dealing with the
rapes in Porgera be allowed to set an industry precedent.


[1]
Leadership of the Akali Tange Association (a grass roots
human rights organization in Porgera) and of the Porgera
Landowners Association (which represents the landowners in
the mine lease area) travelled yearly to Canada between
2008-2011 to meet with Canadian media, speak at Barrick’s
annual general meetings and meet with Canadian civil
servants and Members of Parliament regarding issues of
violence by Barrick’s security forces at the Porgera Joint
Venture mine. They also joined with MiningWatch Canada in
lodging a formal complaint,
in March of 2011- addressing the rapes among other issues –
with Canada’s National Contact Point for the OECD
Guidelines for Multinational Enterprises.

[2] In
addition to victims of rape by the mine’s security guards,
women also allege rape by police mobile units that are
housed at the mine site, fed and supported financially by
PJV. Barrick’s claims process will not provide benefits to
women who have been raped by police mobile units.

[4] Common
law of PNG consists of the Constitution, “customary law”
derived from the “custom” of the various peoples of Papua
New Guinea, and the common law of England as it stood at
the date of Papua New Guinea’s independence on 16 September
1975 (Wikipedia).

[5] Barrick’s
letter to the UNHCHR of March 22 describes a “recent
enhancement” to the company’s remedy program in Porgera
notably that “it will bear in mind the range of awards that
have been rendered in the Papua New Guinea civil justice
system for rape and sexual assault.” It is unclear exactly
what this will mean in practice.


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