Human Rights and the Impact Assessment Act: Proponents and Consultants as Duty Bearers

• Author: Adebayo MajAJekolag be, Sara L Seck, an d Penelope Simons
• Pages: 443-465

443

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Human Rights and the Impact Assessment

Act: Proponents and Consultants as

Duty Bearers

Adebayo Majekolagbe, Sara L Seck, and Penelope Simons*

A. INTRODUCTION

The case for the explicit consideration of human rights in impact assess-

ments (IAs) was made long before the 2011 United Nations’ Guiding

Principles on Business and Human Rights (UNGPs) were developed.1

The UNGPs conrm that states have a duty to protect human rights from

harmful business conduct and that businesses are expected to respect

human rights wherever they operate.2 Central to businesses’ fulllment

of their responsibility to respect human rights is the requirement that

they engage in human rights due diligence (HRDD).3 Although human

* The authors are grateful to the Social Sciences and Humanities Research Council of

Canada (SSHRC) for funding support in the form of a Knowledge Synthesis Grant:

Informing Best Practices in Environmental and Impact Assessments. Further informa-

tion on this project is available on the Schulich School of Law digital commons project

site, “Responsible Business Conduct and Impact Assessment Law,” online:

https://digitalcommons.schulichlaw.dal.ca/ialawrbc.

1 United Nations Human Rights, Guiding Principles on Business and Human Rights:

Implementing the United Nations “Protect, Respect and Remedy” Framework (New York &

Geneva: United Nations, 2011). See Nora Götzmann, “Introduction to the Handbook on

Human Rights Impact Assessment: Principles, Methods and Approaches” in Nora Götz-

mann, ed, Handbook on Human Rights Impact Assessment (Cheltenham, UK: Edward

Elgar, 2019) 2 at 5–9 for an overview of the origin and elements of human rights IA in

relation to business activities.

2 UNGPs, above note 1, principles 1, 11, and 23.

3 Ibid, Principle 17.

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rights impact assessment (HRIA) is not synonymous with HRDD, it

has become a tool deployed to fulll HRDD’s objectives.4 The more

recent Framework Principles on Human Rights and the Environment

(Framework Principles) arm that the duty of a state to protect human

rights entails requiring prior assessment of environmental impacts of

projects and policies, including their potential eects on the enjoy-

ment of human rights.5 HRIA is a process for identifying, understand-

ing, assessing, preventing, mitigating, and accounting for actual and

potential human rights impacts of the activities and operation of busi-

nesses.6 Although some Canadian extractive companies have employed

HRIA and other HRDD tools with respect to projects abroad,7 the appli-

cation has been awed and controversial,8 and these tools have rarely

been used in relation to proposed projects or operations within Canada.

There is no law expressly requiring that Canadian companies assess

and/or address the human right impacts of their domestic activities,

beyond compliance with the limited expectations of national and prov-

incial human rights commissions. And although dierent countries

now impose HRDD reporting obligations on businesses,9 Canada has

so far failed to do likewise.

4 Götzmann, above note 1 at 7. Various tools, including the HRIA, can be used to achieve

the objective of HRDD under the UNGPs. The UNGPs do not explicitly require busi-

nesses to conduct HRIA.

5 United Nations General Assembly, “Report of the Special Rapporteur on the Issue of

Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and

Sustainable Environment — Framework Principles on Human Rights and the Environ-

ment,” UN Doc A/HRC/37/59 (24 January 2018), Annex, Framework Principle 8.

6 Götzmann, above note 1 at 4. Götzmann further noted that an inclusive denition of

HRIA encompasses HRIAs commissioned by companies, whether integrated or “stand-

alone,” as well as those commissioned by communities (which may be led or driven

by non-governmental organizations or civil society organizations), collaborative multi-

stakeholder approaches, and sector-wide assessments; see Götzmann, above note 1 at 9.

7 See, for example, Penelope Sanz & Robin Hansen, “The Political Life of a Human Rights

Impact Assessment: Canadian Mining in the Philippines” (2018) 7:1 Canadian Journal

of Human Rights 97; Motoko Aizawa, Daniela C dos Santos & Sara L Seck, “Financing

Human Rights Due Diligence in Mining Projects” in Sumit K Lodhia, ed, Mining and

Sustainable Development: Current Issues (London, UK: Routledge, 2018) 99 at 105.

8 See, generally, Daniela Chimisso dos Santos & Sara L Seck, “Human Rights Due

Diligence and Extractive Industries” in Surya Deva & David Birchell, eds, Research

Handbook on Human Rights and Business (Northampton, UK: Edward Elgar, 2020) 151.

9 See, for example, LOI n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des socié-

tés mères et des entreprises donneuses d’ordre, JORF, 28 March 2017, no 0074 [Corporate

Duty of Vigilance Law]; EC, Commission Regulation (EC) 2017/821 of 17 May 2017 laying