Q&A with International human rights lawyer Lloyd Lipsett

On May 23, the Nunavut Impact Review Board (NIRB) granted intervenor status to international human rights lawyer, Lloyd Lipsett, on behalf of IsumaTV’s Zacharias Kunuk. Lipsett will conduct research with stakeholders (the seven affected communities, representative Inuit organizations, territorial and federal government regulators, the companies, Baffinland and ArcelorMittal and environmental and sociological experts) in the Mary River project to prepare an independent human rights impact assessment (HRIA) on the propsed iron ore mine. As intervenor at the project’s final hearings in July, Lipsett will present his preliminary research along with, possibly, IsumaTV’s video input from regional Inuit.

On his first trip to Igloolik in early May, I interviewed him about his research process throughout the HRIA and how he hopes the review will affect future mining developments in Nunavut and Canada:

BW: Whom will you be talking to and what will you be asking them?

I will talk to as many people as possible. There are five main groups of people. There are people whose rights, ostensibly, should be protected: Igloolik, as well as other communities, to see the range of concerns and where there are commonalities or differences. I will also be talking to the QIA and the hamlet as representatives of those people. But I’m also looking beyond that. I will look at the regulators and government agencies responsible for monitoring or, at this stage, approving different aspects of the mine. I will to speak to the company to the extent it wants to speak to me. And finally, I’ll talk to experts.

What will I be talking about? What are people’s concerns generally. And then I have to translate that into human rights terms. The subjects of the inquiry and the HRIA are labour rights, the rights of the community, the human rights issues associated with contractors and contracting, product use and finally, human rights issues associated with governance: issues around corruption, anti-corruption, how well the local, provincial or federal laws reflect international standards.

BW: Where does a HRIA get its teeth?

I think it’s by engaging dialogue with decision makers. There are no teeth, legally. There’s persuasion. I have to build a persuasive case by doing a good job. I have to have a sound methodology and I have to be balanced. If I were to skew one side or the other, it would lose its objectivity.

It’s by doing a good job, difficult for skeptics to poke holes in, that it has more credibility and weight and persuasiveness. It also needs to be aimed at practical things. It can’t be pie-in-the-sky; it can’t be unobtainable; it can’t be un-implementable, it has to be grounded in the concerns of the people and the realities of mining operations in the north. It has to bridge those two things. So that’s the challenge. Teeth? Nah. Chance of being persuasive? Maybe.

BW: What have you found are the biggest concerns from your preliminary interviews?

I think, predictably, the environment and the land and animals are the very consistent top concerns. That’s not surprising, given that Inuit and other indigenous peoples’ cultural and spiritual traditions are interconnected with the land. It’s also consistent with the concerns raised in the EIS process to date and what’s in the media.

There are other concerns are around the opportunities that exist, both for individuals, in terms of work, and how and whether those opportunities will materialize, and then also the broader social benefits agreements with the Inuit Impact Benefit Agreement (IIBA), taxes, royalties that will provide economic opportunities or development for the community.

Given the socioeconomic conditions of many communities in the north, there is a need for economic development and there are limited opportunities. In some ways, it’s normal for people to want to imagine a brighter future. The difficulty, I think, is to know without the benefit of a crystal ball looking into the future how things trade off against each other and whether the positives that they hope for will materialize and the negatives they are concerned about are properly addressed. A recurring theme is whether the company and the government will abide by the rules. And there is, again, I think understandably, some suspicion in the communities here that have very limited experience with companies and long experience with government. It leads them to a fairly high degree of distrust.

In my years of experience working with mining, I’ve found there are a number of specific issues that I think are fairly predictable—alcohol, something people have expressed concern about, is one example. And to give the company and the regulators credit, these are things that, in many cases, are addressed in the FEIS, because they are predictable issues for people with experience in the mining sector.

BW: How informed are Inuit about their rights?

Well generally speaking, people are not aware of the specific details of their rights under international law. People have awareness about their human rights, and it’s mostly framed in reference to national protections of rights, which is, in Canada’s case, the Charter of Rights and Freedoms, the Constitution, and in Nunavut, the Land Claims Agreement, which is a recent thing. It’s one of the few land claims agreements post-1982, and it’s within living memory of most adults. So I find there is actually quite a high degree of understanding of rights and the reference point that is the NLCA.

The NLCA I’m sure has some gaps but overall, it’s pretty good. There’s always the document on paper, and then there’s the implementation and that’s another thing I’ll have to look at: how well is the NLCA being implemented in practice? But I have no judgment on that yet, and I have no reason, at this point to believe that people are not implementing it in good faith. There may be issues around capacity, resources, et cetera, but I have encountered very little that makes me think it’s something that’s being implemented in bad faith.

There’s a legitimate question to be asked when you’re doing a HRIA in a developed country with fairly high level of adherence to the law. The gaps are fewer, but there always will be gaps. There is no country in the world that is perfect in terms of international human rights performance. But, Canada has, for all its weaknesses, a pretty high standard.

The issues are much more stark and acute when you start talking about countries that live under dictatorship or the least developed and poorest countries in the world. I think here, in Nunavut, there are challenges related to isolation and poverty. More acute than in rural Saskatchewan, perhaps. So awareness is good, just framed in a different set of awareness points.

BW: One of the things you’re looking at is whether Inuit have access to free, prior and informed consent. How informed are they about what they’re consenting to or not?

I’ll give you a bit of an incomplete answer on that one. I can tell you that the concept of free, prior and informed consent has not been accepted at an international level. What it means is still ambiguous, although I think you can tease out a certain number of core elements about which there is an emerging international consensus.

One of the key things around free, prior and informed consent is whether the government has a framework for consultation and review of the impacts and awareness of impacts. I think it’s hard to deny that Nunavut, under the Land Claims Agreement, has a framework for consultation. The Nunavut Impact Review Board has a process. I don’t think you can deny that there is a process in which the organizations representing indigenous people have an important part. The fact that the Land Claims Agreement makes it mandatory for there to be IIBAs in place before a development proceeds, for example. I don’t think IIBAs are a panacea, for free, prior and informed consent, but you can’t argue that it’s some form of agreement to something.

So, there are elements at play in this process that could give you some pause around there being free, prior and informed consent: some of the people I’ve talked to have said things along the lines of, “we’ve had only the positive impacts told to us,” and they don’t feel there has been much disclosure around negative impacts. That’s also not surprising. It’s human nature, but it is one area of inquiry. At the same time, however, with the agencies at the table, with the public nature of the hearings, those negative concerns are out there; it’s not as if this is completely uninformed. And where I’ve seen really clear violations of free, prior and informed consent, the situation looked a lot different than what’s here.

So this may be a disappointment to some people, but, as someone who’s analyzed this area of law, I can’t accurately and in good conscience say that any small group of people have a right to veto a project. However, if there were a large segment of the population that wanted to, that would make it difficult, in terms of international law—but also politically—to proceed with a project. And I think companies too are aware that, if they don’t have broad social acceptance of a project, they’re in for trouble. It’s going to be difficult; it’s going to be costly; there are going to be interruptions. So I think companies are also sensitive and, I hope, in good faith, want social backing.

Free, prior and informed consent is the touchiest and one of the more uncertain areas of international human rights law and it applies particularly to indigenous people’s rights. You know, if they were doing a project, in Mississauga, the residents of Mississauga don’t have the right to invoke free prior and informed consent as we do here in Nunavut.

BW: How do you hope the HRIA you’re working on now will affect the Mary River project, as well as future development in Nunavut?

I think it’s always best to have modest expectations, and then maybe we’ll surpass them, rather than have inflated expectations. I think it can have a subtle but profound—I don’t want to use the word revolutionary, I think it’s an overstatement—impact in terms of, for one, educating the different stakeholders about each other’s rights, issues and concerns.

For the Mary River project, I hope to accomplish, in the short term, some form of input into the formal hearing; in the final report, when it’s done, a very detailed analysis of the project from a human rights perspective, and with concrete recommendations about how human rights concerns can be integrated into the project, at whatever stage it’s at and moving forward.

One area to stress to all parties is the importance of ongoing communications, consultation and monitoring.

So those, I think, are attainable things. For mining in the north, the framework of analysis and the issues raised [in the HRIA] will be in the public domain. And it’ll be the same communities, in many cases, dealing with other companies and projects. So they’ll have a knowledge base that they can bring to future reviews or negotiations. There will be companies that will come in and see that human rights have been raised in this context and will voluntarily take that on, perhaps a bit more proactively, or explicitly, and government agencies may also approach things differently.

Baffinland is unique, in the sense that the Mary River project is Baffinland’s only project. But ArcelorMittal is a big, global enterprise that operates in 60 countries. It has a human rights policy of some sort. Eventually, I hope, by doing a human rights assessment, I can show they’ve had human rights issues raised in other countries. I hope, in the end, this may raise the bar of their global policy and practice on human rights issues. I think the immediate thing, which we’ve already started to do, is raising awareness and education and constructive input into the review and permitting process, and eventually the monitoring process. In the longer term, a framework that can inform future projects in the North and globally for ArcelorMittal.

BW: How does the work you’ve been doing in developing countries prepare you for this HRIA, and how can that affect international mining development?

My work in developing countries and elsewhere in Canada allows me three things. First, I know something about how mining operations work. And I have a sense of what good, and slightly less good, and slightly less good again, mining practice looks like. So I have points of reference to compare it with other companies, and with what industry associations are encouraging the membership to do, and so on.

In developing countries more than in Canada, I’ve also seen what happens when things go wrong; when there’s conflict, protest and, in the most extreme cases, people dying. And I think everyone would agree to the proposition that we don’t want anything to go wrong. We don’t want a conflict or protest over the mine. We don’t want an environmental disaster, we don’t want an armed standoff, we don’t want social tensions. There are a lot of examples out there of things that you don’t want, and because of that, hopefully, you can encourage people to be proactive about doing things well.

One other thing [I’ve noticed] is that, because HRIAs are a new thing, in every context, there’s a period in which people need to be educated about the process; people are skeptical, reactionary. I’ve gone through that. It’s a new element in the discussion, people are not comfortable with it, they’re concerned that it will exacerbate tensions or it will complicate political dynamics. That’s always an issue in the first phase. So I’m kind of prepared for that.

It might seem like a bit of an odd thing in 2012, but in 2018 it won’t. I’ve talked with founders of environmental assessment firms from the ‘60s and ‘70s, and they faced the same reactions that I face now with environmental impact assessments. Now these people have $50 million companies with 300 employees. And it’s standard practice to do an environmental impact assessment. Things develop over time.

The International Finance Corporation, which is part of the World Bank and which has its hand in many budgets in developing countries, has—in its 2012 guidelines— said that HRIAs are—they haven’t said the word mandatory, but strongly required. But if you read between the lines, you’re not going to get a loan from them if you don’t do HRIAs in high-risk countries. So they wouldn’t worry about a country like Canada, but they would for something in the Democratic Republic of Congo or Columbia. If you want World Bank money, you’re going to have to do a HRIA.

These things will drive industry. Smart environmental and social impact assessment firms will probably start offering HRIA as part of a suite of services. I don’t think it’s good enough just to add a little subheading in your ESIA, but I don’t see why HRIA couldn’t be integrated into an environmental and social impact assessment process. I think that’s where the field could and should go.

This interview has been edited for content, clarity and length.