How Extractive Industries Business Can Respect Human Rights Beyond this Pandemic

During this COVID-19 pandemic, which has speedily moved from being a health crisis to an economic crisis, there has been continuous unearthing of rampant human rights violations, particularly based on race and gender. Human rights, rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status, including freedom of opinion and expression and the right to work and education, is currently at a delicate balance from within households, with the shadow pandemic of violence against women on the rise, to the workplace, with unprecedented enforced home-working into the early hours of the morning and the instances of inadequate provision made for personal protection equipment for workers who work in high risk environments.

While all business at this time have a significant amount of work cut out for them tackling business impacts that they may have on their stakeholders, I would like to look particularly at the extractive industries in Nigeria, as our extractive industries account for over 70 percent of total government revenue, with production capacity of 2.5 million barrels per day; making the country Africa’s largest producer. Nigeria, we all know, is a giant in the extractive industries, owning 2.2.percent of global oil production and over 50 natural resources, including limestone, gold, coal, gypsum, kaolin, sapphire, barite, mica, granite, copper, iron ore, marble and sand, amongst others, deposited in commercial quantities across its 36 states and the Federal Capital Territory. The Extractive Industries Transparency Initiative (EITI), through the Organisation of the Petroleum Exporting Countries (OPEC), reports that Nigeria has almost 40 billion barrels of proven oil reserves, and a 2020 Ventures Africa report estimates that the Federal Government earned N416.32 billion from Nigeria’s solid materials sector between 2007 and 2018.

Business Interaction with Human Rights

The relationship between business and human rights is of central importance to our increasingly globalised economy, since business activities cut across different people with differing beliefs and backgrounds working together in diverse environments. This means that business has direct links to human rights, as the actions of a business enterprise can affect its employees and contract workers, customers, supply chain workers, host, impacted or access communities, and end users of products or services, enjoyment of or inability to access their human rights, a situation which may be further exacerbated in extractive operations due to the sector’s high environmental and social impacts. This matter is further aggravated when business does not pay sufficient attention to this risk, which may have direct impacts on the business itself, including the lack of longevity, poor brand reputation, inability to secure and or sustain investment and conflict.

Unfortunately, even in the face of the potential prosperity the extractive industries have brought and can still bring to Nigeria, the industries have been marred by a marked lack of environmental, social and governance oversight, and there have been increased fears for human rights abuses and violations in Nigeria in general and in extractive communities in particular.

Community engagement, social justice, human rights and environmental activism are common themes in Nigeria’s oil and gas mining sectors, and sadly, following the killing of Ken Saro Wiwa, a leader of Ogoni Land in Rivers State in 1995, occasioned by his demands for social justice, the continuous violation of human rights, albeit more subtle, have continued, driven by poor industries’ regulation, inadequate legal frameworks via which indigenes may seek redress, environmental pollution and poor enforcement of laws, amongst others. The problem with human rights in the industries is complex and multi-dimensional, with the three major actors complicit: government, business and community. Human rights abuses range from business carelessness to government disregard for ancestral ownership of land, to artisanal miners and refiners used illegitimately by wealthy rogue international and indigenous entities without recourse to the duty of care, and to women and youth being ostracised from community decision-making due to established cultural norms. Women human rights defenders are not only marginalised by their communities, they are seen as a threat to religion, honour and culture.

As Nigeria sets her sights on mining as a key contributor to our Gross Domestic Product (GDP), as spelt out in the Federal Ministry of Mines and Steel Development’s Mining Road Map, it is imperative that all is done to repel repeat mistakes made in the oil and gas sector. While low-brand players have been fingered to be involved in human rights abuses in mine exploration in the past spanning diverse states, including Zamfara, Oyo, Niger and Enugu states, in April this year 2020, at the height of the pandemic’s infiltration within Nigeria, a viral video went around the country showing expatriate workers of an Indian engineering and construction company working for Nigerian manufacturing and extractive conglomerate protesting their inability to leave their place of work in the Ibeju-Lekki area of Lagos to any place of safety or to their home country, India. They alleged that in the midst of the containment policies of the government due to COVID-19, they were forced to work using physical violence, had been provided no security or food, nor had they been paid for their service for three months. This same conglomerate was the focus of complaints its host communities in Kogi State, alleging environmental degradation, health challenges, including miscarriages, as a direct result of its coal mining operations, as well as its unwholesome approach towards acquiring land off of community members. There was no official government inquiry, nor was there a formal statement from the company addressing the complaints or its steps towards remediating the issues.

These actions are the reason why the Global Initiative for Food Security and Ecosystem Preservation (GIFSEP) and 350Africa raised concerns on the unchecked human right abuses on coal mining communities across the country. These events could easily transcend into violence such as has been witnessed in the sustained conflict in the Niger Delta region of the country, which the government chose to manage through the Amnesty program to reform ex-militants who were manufactured as a result of the struggle for justice for some and criminal intent to enrich for many more; funding that could have been proactively utilised for efficiency and localised and national prosperity.

How Can Business Lead on Respect for Human Rights?

While there is no doubt that extractive businesses in Nigeria have taken the lead in thought and action in a poorly regulated environment through providing jobs, paying taxes, building an industrial base, enhancing efficiency, earning foreign exchange and transferring technology and other activities beyond their legally required sphere, they have also been linked publicly to inadvertently deepening disparities in wealth, poor labour conditions, pollution incidents, health and safety failings, forced displacement and other human and civil rights abuses, leading to calls from all over the world for companies to become more accountable in the opaque industries. Considering that businesses have a direct relationship with their host communities and have billion-dollar worth of investments within those locations, making them more vulnerable, it makes business sense to take seriously yet another opportunity for leadership through intentionally tackling human rights challenges.

While communities can force accountability through legal means when extractive companies and governments fail to act responsibly, evidently, the kairos for business action and inclusive community engagement and closer supply chain management has come with the democratisation of news dissemination and the aforementioned globalised nature of business. As Prof. John Ruggie, the United Nations (UN) Secretary General’s Special Representative on Human Rights and Business said in the foreword of the UN Guiding Principles on Business and Human Rights (UNGP) in 2011, it is important “to initiate a dialogue between communities and corporations that fosters mutual learning and understanding, builds trust through improved communication and sets the stage for innovative problem solving that ultimately results in measurable change for all stakeholders”.

At the global level, the UNGP recommends that business establishes high‐level corporate leadership for equality and non-discrimination, that they consciously develop the duty to protect workers and citizens from human rights abuses through laws, policies and regulations and that they consciously develop the duty to respect workers and citizens’ human rights whilst ensuring that the pursuit of profit does not come at the cost of human rights abuses and exploitation, through activities such as conducting human rights due diligence for suppliers. The body also recommends that business provides access to effective remedy, whether judicial or non-judicial through a fair and balanced tribunal and investigation, and that they measure and publicly report on progress which would encourage necessary reviews of processes and closing of gaps.

Business can also comply with regional and national level regulation that can guide overall approach to good governance, including The Africa Charter on Human Rights, which is interestingly the only domesticated treaty of the nine African Union Africa Mining Vision (AMV) treaties that Nigeria has ratified and deposited, the ECOWAS Model Mining and Minerals Deposit Development Act (EMMMDA), first introduced in 2018, which is expected to harmonise, between ECOWAS member states, all legal policies in their respective mining sectors and implicatively reduce the occurrence of human rights violations while stimulating growth through the sector and the Federal Ministry of Mines and Steel Development’s Mining Road Map which through the MinDiver (Mineral Sector Support For Economic Diversification) Project, continues to evolve processes that will facilitate better governance of the mining sector. In October 2016, the Buhari-led government unveiled the 7 Big Wins, the seventh of which focuses on Stakeholder Management and International Coordination, and in February 2017, introduced a 20-Point Agenda woven around the decentralisation of the 2009 Amnesty programme and inter-agency collaboration of oil companies to engage their relevant stakeholders – especially communities and state governments – with the intent of maximising human potential in the oil rich Niger Delta region. Similarly, in 2018, the government introduced The Nigerian Gas Flare Commercialisation Program (NGFCP) as part of the Niger Delta Development Compact targeted at improving the environmental standard of living of people in the Niger Delta, whilst providing jobs; an ambit of the Nigerian Content Development and Monitoring Board (NCDMB), an agency of government which promotes the equitable harnessing of local content in oil and gas operations.

While the National Human Rights Commission, pursuant to its mandate to promote, protect and enforce human rights in Nigeria, worked with Global Rights and other relevant civil society stakeholders to develop a National Action Plan on Business and Human Rights (NAPBHR), CSR-in-Action developed the Community Engagement Standards (CES), a first of its kind tool in the region for inclusive relations between communities, businesses and governments to reduce instances of injustice, to much acclaim, following extensive visits to extractive communities and including feedback from community members during the annual Sustainability in the Extractive Industries Conference, about the lack of inclusion and the other perceived injustices meted by government and business, as well as gatekeepers of obsolete practice within communities. The tool adopts a holistic approach specific to host community inclusive management and proffers three phases – Establishing Community Relations Mechanisms, Planning for the Long Term, and creating an Exit Strategy from the onset that does not disenfranchise communities – for business operations within communities. The CES recommends 30 percent women and 30 percent youth and representation in host community decision-making, transparency in hiring and contracting through the use of technology, and not only recommends specific ways in which community engagement can be beneficial to business through inclusion and the protection of human rights, it points out the oversight functions that government, both state and federal, is expected to perform in order to protect both business and community.

Business can take action against human rights violations for various reasons – to promote profit, for business longevity, to comply with government directive, to procure investment or for sheer good neighbourliness. For whatever reasons business chooses, it must remember the Goldman Sachs report that points to the fact that 73 percent of project delays the world over are due to ‘above ground’ or non-technical risks, including community resistance, and then decide what is most important for its existence.

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