Continuing conversations with CAO

Civil society forum

11 October 2013

Sponsor: CAO

Panelists: Meg Taylor (Vice President, CAO) Gina Lea Barbieri (Senior Dispute Resolution Specialist, CAO), Daniel Adler (Senior Compliance Specialist, CAO)

Chair: David Hunter (Professor, Washington College of Law)

Other CAO representatives:

Elizabeth Mensah, Associate, Advisory

Julia Gallu, Specialist, Dispute Resolution

Scott Adams, Specialist, Dispute Resolution

Andrea Repetto Vargas, Specialist, Dispute Resolution 

The session will present a snapshot of CAO’s work over the last 13 years, and will offer an opportunity for stakeholders to engage CAO in a robust discussion about its body of work, particularly as it relates to recourse, remedy and outcomes. In particular the session will focus on how CAO looks at outcomes, and will speak to outcomes from both Dispute Resolution and Compliance.

David Hunter

• Growth in attention to grievance and dispute mechanisms since initiation of CAO 13 years ago – in different context, most IFIs have dispute mechanisms, private sector
• Limited experience of how they are delivering (apart from CAO), start exploring how to measure success, outcomes, etc, incl different roles of different stakeholders

Meg Taylor

• This is my last annual meeting, will be at spring meetings, but leaving after
• Thanks to the support from CSOs over the years, making sure working towards what we believe in, giving voice against powerful institution
• Responsible to hold the private sector side, IFC, to account
• Also covers MIGA, CSOs should start paying attention to them
• Project level remedy, compliance and advisor roles
• Advisor – systematic concerns, advice president and the institution on trends emerging from the cases we have, eg impacts of transformational projects in the future
• 120 cases in 40 countries – fluctuation in number over the year, but since 2011 number is growing and growing
• Why? A variety of reasons, a lot due to organisations working with community based organisations, trust based on experience, aggressive outreach – using internet and other forms of communication to reach out – work is getting out too via civil society
• CAO doesn’t take information from NGOs, people make the connection independently – international CSOs only 20% – no partnership with NGOs
• Oil gas mining 50% of cases – skewed due to BTC pipeline
• Growth of cases around land, water
• Major issues socio economic issues, distributional issues
• 43% cases closed, 12% dispute resolution, 8% investigation and compliance
• What’s changed – number of cases now going to compliance, causing anxiety in the institution, IFC and MIGA under the microscope

Gina Lea Barbieri

• Dispute resolution context – generally the focus is on listening to the communities, understand their interest and needs, and what they want, eg dialogue – then will approach the company, this is voluntary
• Work to find local mediators, facilitators that are neutral, reflecting the cultural practice of the country. At any point about 20 negotiators out in the field
• One of the most recent cases, Agri Vie Uganda, supported by Oxfam etc, a claimed 10,000 Ugandans evicted through fund in Johannesburg to New Forest Company. Communities wanted access to land, and talk to the company about it
• Government response, very antagonistic initially, claimed not Ugandans so no compensation would be paid – media war between Oxfam and company before getting to CAO
• In the field for over the year, capacity building for participation in the negotiation process, which has just concluded – established cooperative society, company will support this as part of CSR (not compensation), not about restoration of livelihoods (company not in position to do this financially), but to give support
• CAO there to monitor the implementation. First AGM of society last week – positive feedback.
• Where is the IFC in this? Eg CIEL and Nicaragua case, approach IFC for what support they can give to ensure some of the outcomes – work in progress
• IFC will say involvement is through our clients, but there may well be a role for the IFC too
• 18 active mediations across the globe at the moment

Daniel Adler

• Compliance function, how it may or may not lead to outcomes in particular cases
• Project level improvements, address at least partially concerns
• Systemic improvements, changes in IFC/MIGA policies or practices, more or less address the concerns
• Compliance function – makes findings of compliance or non compliance, in particular cases in response to feared or potential harm
• Findings non enforceable
• Project level improvement – IFC/MIGA, secondly client, potentially through FI
• Systematic improvement – IFC/MIGA
• Also public sphere, for dialogic process, eg placing reports in the public, crucial for influencing IFC/MIGA
• Compliance case load growing quickly over last through years – hope to have more of evidence based in the next few years
• Kazakhstan oil field pollution project example, picks up finding, turns into action plan – monitoring 2-3 years after finds most have been remedied
• Palmoil– avoid stringent requirements, closed down the project – no project level improvements, systematic improvements – Zoellick palm oil moratorium led to hiatus in investments while new strategy being implemented, CAO found strategy addressing at least some of the issues
• Attention to the public important

Elizabeth Mensah

• Lessons learned from our processes are critical for insti learning, but also CSO to see progress and room for improvement
• All advisory based on case work
• Try to feed into the institution in various ways, eg learning series to create dialogue and learning
• EG review of IFC PS, helping IFC identifying gaps in PS
• Providing tools for external stakeholders, eg grievance mechanism.
• Evaluating ourselves also critical part, qualitative and quantitatively
• Challenges:

–       Disparity between the perspectives of CSOs/NGOs and perspectives of project affected people

–       An institution that is resistant to take lessons from CAO’s compliance reports and recalcitrant in responding to the recommendations on CAO’s management action tracking record

–       Governments who are dismissive of the CAO as an IAM, and often unwilling to appropriately deal with the challenges faced by their citizens

–       The accountability of the IFC in dispute resolution practices

Q

New PS for PPPs, strange as IP still keeps jurisdiction

Adler

• Have working arrangement with the panel, to ensure proper information sharing and collaboration eg for PPPs – following the money, not the standards
• Have arrangements for coordination

Q

Systemic issues, eg palm oil and moratorium, FI review extremely useful – how can we get more of this, eg land issues and agribusiness.

On Uganda case, settlement only went to some communities who reached agreements, some communities are still in negotiation. What is the role of IFC here? PS are supposed to guarantee the things that weren’t covered.

Barbieri

• Uganda – two complaints, outcomes referred to was one of these. No real answer, what we work on in dispute resolution is the willingness for the company to engage and the request made by the community. The community decides what they agree to. If gone straight to compliance, the community would probably not got anything.
• Relationship is between the community and the client, not the community and the IFC. Hope to pilot more IFC involvement, bring their expertise, looking for a role for them.

Adler

• WDR on risk this year, strong message to countries on risk, what’s good risk management, but not asking itself if its practicing what it is preaching – if it were to think about its own practices, it would need some significant changes – what structures should be there to avoid externalisation of risks (eg to communications)
• JYK on learning from failure, then need to look at these cases – and demonstrate that we learn

Q

Human rights in the context of non UN grievance mechanisms, idea that communities would get less than what they deserve under human rights standards is highly unsatisfying. Can’t rely on IFC to provide any remedy, so have to do with dispute settlement, unsatisfying.

Taylor

• IFC looking at developing human rights framework, but when we look at a complaint don’t look at human rights, even though 60% has human rights language.
• We have enough resistance where we are right now, have to fight to even be where we are now – doesn’t mean we should not be sensitive.

Q

How do we get out of this box on dispute, PS or human rights – they are not getting what they deserve

Taylor

• Communities in Nicaragua have achieved a lot, whether its enough is for them to say. Also the government of Nicaragua involved, so also their responsibility. Can’t load everything onto the IFC.

Hunter

• Not about whether IFC accepts HR or not, how to reach outcomes that were guaranteed under PS

Q

You have a lot of enemies, task to choose the battles – the risks and your role in shaping the way ahead and taking proactive approach. At what point do you have a place at the table to identify these risks, the agenda in the future, and addressed properly.

Taylor

• Part of the governance structure of the institution, as large scale projects emerge their role to look at EHSA is fulfilled – concern that this will go at tremendous pace, the other players are the governments, have to acknowledge that they have a lot of power in this. Only way to influence this is to really come back on the risk issue and how the institution itself looks at this.
• Credit risk drives IFC, not social and environmental risk, until something massive goes wrong. Private sector will have a huge role moving forward. Transformational projects require attention from civil society – what are the risks the people are going to face.

Julia Gallu

• Not a discrepancy with PS, a basis of what we are trying to achieve – this is not a typical scenario

Q

One World Bank Group strategy, eg government and resettlement, high level dialogues on impacts on economic growth and sustainable development

Taylor

• Not many know how this will be implemented, leadership clear on direction but not on implementation. Sharing lessons, WBI is a good resource for lessons learned. Chad Cameroon only Bank’s corporates person.

Adler

• Trying to document, there are resources and mandate – we are stretched

Q

Accountability and dispute resolution is important, also need to be lessons learned and systematic changes, how will this happen.

Barbieri

• Learning process in the IFC, roundtable discussions about a case, as frequently as we can. Also document more routinely lessons learned from our cases. VP can trigger a compliance appraisal on any issues.

Mensah

• Advisory based on case work, as part of this meeting with dispute resolution and compliance to look at systematic issues coming up – this informs advisory on pieces important moving forward.

Taylor

• Right to remedy, will run a day of training courses on grievance mechanisms

Scott Adams

• Not every dispute resolution will link with systemati  or even compliance implications. In two Bujagali cases, ended up working with the client and IFC holding a work shop to talk about lessons learned for users of grievance mechanisms, those who hadn’t used it and for IFC and client – led to request for training of social and environmental staff in IFC.

Q

• Ex post evaluation after project finished of little used for institutional learning, tends not to change institutional behaviour, need to be done ex ante. How early can you engage?

Taylor

• Early, which annoys the institutions

Barbieri

• Have cases that are prospective projects

Adams

• Projects actively considered can be brought to CAO

Q

WB and IFC on safeguards policy that apply to both for harmonisation. Thoughts around challenges and opportunities for this

Gallu

• Policy areas where the IFC gets away with having standards, harmonisation will loose these areas, eg labour rights – would probably get lost if harmonisation
• IFC in principle capture a range of social issues, younger policies, for WB to pick these up – for other areas WB requires alternative analysis that IFC doesn’t. Reasons why harmonisation might be tricky.

Andrea Repetto Vargas

• Dispute resolution space, opportunities and limitations, not all scenarios relate to non compliance of standards per se – also need to understand the different stakeholders, not always IFC and company, there may be others. Encourage conversations off line.

Q

Mentioned MIGA, very little CSO scrutiny, how can we track them better.

Taylor

• 3-4 cases on MIGA, very hard to track

Kris Genovese, CIEL

• Bankonhumanrights.org tracks all the projects

Hunter

• Power imbalance – we thing rights based framework empowers communities, what is the CAO view of need of neutrality between community and client – now there is an information balance. What you can do to address the power imbalance.

Taylor

• CAO always work closely to try and build up capacity of communities.

Barbieri

• Levelling the playing field is essential, but there may be situations where we simply can’t – not an easy task. Can’t appoint lawyers to act on behalf of communities, so Oxfam played an important role in Uganda. Mediator should be partial, work on behalf of communities, can’t play this role.

Adams

• Independent third party people in dispute resolution, there are tools to help balance, but the power imbalance may still be there. Helping with the informational asymmetry, also to companies. Networking, sitting at a round table with a neutral facilitator, where everyone is treated equal.