Lawyers: Guideposts On The Path To Remedy- ISLP/Accountability Counsel Think Piece
When attempting to provide remedy for communities harmed by corporate finance, creating fair, transparent, and effective agreements between companies and communities is the goal. But in many cases, the technical, legal, or operational tasks necessary to reach that end point are complex, often requiring support from outside sources.
The communities most harmed by international investment are poor and marginalized groups who may not be aware of the various resources available for them to ensure appropriate justice for the damage. Local populations also may not know from where the project that is harming them is getting its financing. If they are able to find out and wish to bring suit, entering the judicial processes almost always requires formal legal support. It is likely that communities are unaware that complaints can be filed to an accountability office with oversight for corporate investmsnet that might grant them some kind of remedy. And even if they are aware of project’s investors and they want to file a formal complaint, the communities may still require legal or operational support to do so.
Whether filing a complaint or bringing a lawsuit the burden of establishing the facts of harm by companies or banks almost always falls on the vicitms of that harm. What accountability offices or courts consider harm and what evidence is needed varies based on juristdiciton. The skills needed in a courtroom or in a facilitated dialogue to demonstrate harm, might not be in ample supply in a community. Communities whose livelihoods are farming, herding or fishing could benefit from advisors whose lives are spent lawyering.
To help remove these impediments to remedy, legally focused civil society organizations play a central role in bridging the gap between harmed communities and the available processes used to access remedy. Legal support organizations and their lawyers provide information, preparation, and legal aid to marginalized communities to assist them in achieving justice when harmed by development projects.
In Accountability Counsel’s ongoing work with nomadic herders in Mongolia harmed by the construction of a large mine financed by the International Finance Corporation (IFC), lawyers submitted a supplement to the herders’ first formal complaint filed to the IFC’s accountabiltiy office, the Compliance Advisor Ombudsman. Accountability Counsel’s legal guidance allowed for the opportunity to improve on some of the herders’ initial complaints to increase the likelihood of them acquiring appropriate remedy. Accountability Counsel also provided training and guidance to the herders to prepare them to conduct formal negotiations with the bank and mining company.
The International Senior Lawyers Project, advocating for community-inclusive development in Kenya, sent lawyers to assist local stakeholders in advocating for enhanced information-sharing with communities during an oil exploration project. Their support was influential in disclosure and discussion of potential changes with involved companies, seeking results that would improve the engagement of local communities in the project.
EarthRights International, as a legal organization protecting human rights and the environment, provides training sessions to local communities to give them useful knowledge to protect their rights, bridging the gap between local populations and the forms of remedy available to them. EarthRights also represents communities in judicial processes to seek justice for communities harmed by projects, providing the kind of international litigation skills that communites often don’t have.
In the Democratic Republic of the Congo, Advocates for International Development have provided legal support to Indigenous Peoples whose land had been seized by the government and corporations for use in the extractive industry. The legal assistance provided by this organization and partners led to the drafting of legislation that would expand the rights of Indigenous Peoples living in the Congo. Lawyers proved influential in translating the desires of the Indigenous communities into true legal action.
The process of accessing remedy for communities affected by development projects is a complicated, there are many steps on the road to justice. One thing that is clear, though, is that the contributions of lawyers to the process are vital. Whether providing resources, training communities on their legal rights, or assisting with both judicial and non-judicial complaints the contributions of lawyers to the process of acquiring remedy for harmed communities is crucial.
With huge thanks to Monika Mehta, chairing the UN Forum Panel on lawyers ensuring access to remedy, which prompted this think piece and to Meredith Mackenzie at Accountability Counsel for her huge input into this extended analysis.