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

AuthorAdebayo MajAJekolag be, Sara L Seck, an d Penelope Simons
 20
Human Rights and the Impact Assessment
Act: Proponents and Consultants as
Duty Bearers
Adebayo Majekolagbe, Sara L Seck, and Penelope Simons*
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:
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.
     444
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

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