Rejoinder to Enbridge Response to Human Rights issues of Northern Gateway Project

RE: Enbridge Inc. Response to Human Rights Issues of Northern Gateway Project

Dear Ms. McMullan and Mr. Avery:

Thank you for the opportunity to provide a rejoinder to Enbridge Inc.’s response to my article regarding the human rights issues of its proposed Northern Gateway pipeline project. (R2R article and Enbridge response)

Enbridge’s acknowledgement that the potentially impacted communities along its proposed pipeline and tanker route have a right to respect for their human rights, and its commitment to upholding those rights as they may be impacted by the Northern Gateway project, is a commendable first step in fulfilling its corporate responsibility to respect human rights under the United Nations “Protect, Respect and Remedy” Framework and Guiding Principles (GPs). However, it must be emphasized that this is simply the first step, and Enbridge must do considerably more in order to discharge its human rights responsibility.

As Enbridge is no doubt aware, the GPs emphasize that “the responsibility of business enterprises to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure.” (GPs, para. 14) In addition, this responsibility “refers to [all] internationally recognized human rights – understood, at a minimum, as those expressed in the [Universal Declaration of Human Rights and the International Conventions on Civil and Political Rights, and Economic, Social and Cultural Rights] and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.” Depending on the particular circumstances of its operations, companies may also need to consider human rights specific to especially vulnerable groups or populations, such as indigenous peoples. (GPs, para. 12) Finally, in order to discharge their human rights responsibility, the GPs recommend that companies articulate a human rights policy, as well as undertake a three-step “human rights due diligence” process to: identify and take steps to prevent, mitigate or remedy their potential or actual adverse human rights impacts; integrate this process and its findings into corporate management systems; and monitor and report on their human rights performance. (GPs, para. 15)

With respect to a corporate human rights policy, the GPs emphasize that this policy should “express [a company’s] commitment to meet this responsibility [to respect human rights]”, presumably as that term has been defined under the Framework and GPs. In addition, the policy should stipulate “the enterprise’s human rights expectations of personnel, business partners and other parties directly linked to its operations, products or services”, including clearly identifying the lines and systems of accountability. (GPs, para. 16) Unfortunately, Enbridge’s “Corporate Social Responsibility Policy – Human Rights” does not meet these requirements – in particular, it does not contain any commitment to fulfill its corporate responsibility to respect human rights, as defined by the Framework and GPs. In addition, while Enbridge’s policy states that it “will work with governments and agencies to support and respect human rights”, “will not tolerate human rights abuses, “will not engage or be complicit in any activity that solicits or encourages human rights abuse” and “will always strive to … demonstrate respect for human dignity and rights in all relationships it enters into”, its policy does not mandate operational compliance, describe how these commitments will be implemented, nor identify the lines and systems of accountability for compliance assurance.

It is commendable that Enbridge is a signatory to the United Nations Global Compact (UNGC) and the Voluntary Principles on Security and Human Rights (VPs). However, it must be noted that the UNGC pre-dates the 2011 GPs by almost a decade, and falls well short of the current international standards for meeting the corporate responsibility to respect human rights. The only human rights commitments required of Enbridge under the UNGC are to  “support and respect the protection of internationally proclaimed human rights; and to make sure that [it is] not complicit in human rights abuses.” [emphasis added] These commitments have been superseded by the more current and comprehensive corporate responsibility to respect human rights requirements under the Framework and GPs. Similarly, while the VPs are still current, they are not comprehensive – they only address the limited subset of adverse human rights impacts related to the actions of Enbridge’s private security providers and its relationships with public security forces.

Ultimately, the fatal flaw in Enbridge’s approach to implementing its obligation to “consistently and rigorously uphold the highest standards of human rights” – that is, by “assess[ing] potential social, economic and environmental impacts of the project through the extensive socio-economic and environmental studies we have carried out” – is that these studies do not specifically consider human rights or identify and address human rights impacts. Assessing human rights impacts consists of more than simply calling an impact assessment a “Human Rights Impact Assessment”. While the GPs permit the integration of human rights impact assessment into other pre-existing impact assessment processes, they require companies to specifically consider the potential or actual adverse impacts of their activities or relationships on all internationally protected human rights (or, at a minimum, the principal ones mentioned above). Moreover, this assessment must be carried out by someone with expertise in human rights. (GPs, paras. 17 and 18) The 2010 Report of the United Nations Special Representative on Business and Human Rights and the GPs emphasize the crucial difference between human rights impact assessments and other assessments, including the social, economic and environmental impact assessments that Enbridge has conducted: “Human rights risk management differs from commercial, technical and even political risk management in that it involves rights-holders. Therefore, it is an inherently dialogical process that involves engagement and communication, not simply calculating probabilities … Human rights due diligence can be included within broader enterprise risk-management systems, provided that it goes beyond simply identifying and managing material risks to the company itself, to include risks to rights-holders.” (2010 Report, para. 85 and GPs, para. 17 Commentary) However, a “word search” of Enbridge’s social, economic and environmental impact assessments that are available on the National Energy Board website, and in particular its documents regarding “Aboriginal Engagement”, did not reveal a single instance, or variation, of the term “human rights”. It is not possible for Enbridge to assess “human rights impacts”, address “human rights risks” or conduct “human rights due diligence” if it does not take human rights into consideration.

In closing, Enbridge’s participation in the UNGC and VPs, and avowed commitment to uphold the human rights that may be impacted by the Northern Gateway project, are commendable first steps in demonstrating its best intentions to respect human rights. However, good intentions alone are not enough to discharge Enbridge’s responsibility to respect human rights. Now that the Framework and GPs have been endorsed by the United Nations and a broad cross-section of government, business and civil society, Enbridge must recommit to those good intentions and update its current practices by implementing the human rights due diligence process recommended by the Framework and GPs. Enbridge should follow the guidance for doing so that has been developed by the International Petroleum Industry Environmental Conservation Association (IPIECA), which has recently embarked on an initiative to contribute to the implementation of the Framework and GPs by raising the awareness and building the capacity of its members regarding human rights, including development of a human rights training kit.

To tangibly demonstrate its commitment to respect human rights, Enbridge must take the following actions, at a minimum:

1. Bring its corporate-level Human Rights Policy in-line with the Framework and GPs (See UNGC’s How to Develop a Human Rights Policy);
2. Specifically with respect to the Northern Gateway project, publicly declare its commitment to participate in, and internally integrate, IPIECA’s human rights awareness raising and capacity-building initiative, including implementation of its Human Rights Training Toolkit for all relevant management and operational staff; and
3. Conduct a Human Rights Impact Assessment of the Northern Gateway project, which explicitly considers international human rights, the potential adverse impacts of Enbridge’s proposed business activities and relationships on those rights, and the measures Enbridge will put in place and actions it will take to prevent, mitigate and/or remedy those impacts (See IFC Guide to Human Rights Impact Assessment and Management). Alternatively, at a minimum Enbridge should conduct a comprehensive gap analysis of its existing social, economic and environmental impact assessments of the Northern Gateway project to determine the extent to which they identify and address the project’s potential adverse human rights impacts – this gap analysis should be conducted, or independently verified, by human rights professionals).

Kind regards,