Read the Initial Assessment published by the NCP 11 January 2022: English

Read the Final Statement published by the NCP 20 December 2022: English 

On 18 January 2021, Global Legal Action Network (GLAN), an NGO, submitted a specific instance to the NCPs of the United Kingdom, Switzerland, and Australia, alleging that Anglo American (UK based global mining company), Glencore International AG (A Swiss global mining and commodity trading company), and BHP Group Limited (An Australian global mining company), had not observed the General Policies (Chapter II), Human Rights (Chapter IV), and Environment (Chapter VI) provisions of the Guidelines. Specifically, the submitter alleges that the companies have caused adverse human rights and environmental impacts; have failed to carry out adequate due diligence; and have failed to disclose material information about the impacts of their operations. Additionally, the issues relate to alleged negative impacts on the health and living environment of the local population, caused by the operation and activities of the Cerrejón Mine in Colombia.

After coordination with the other NCPs included in the submission, it was decided that each NCP would handle a specific instance relating to the company headquartered in their country. Therefore, the Swiss NCP is responsible for handling the case of Glencore International AG, the UK NCP will handle the case involving Anglo American, and the AusNCP will handle the case related to BHP Group Limited.

On 11 January 2022 the Swiss NCP published its initial statement deciding to accept the specific instance for further examination. The Swiss NCP offered its good offices for moderating a mediation between GLAN and Glencore on Glencore’s due diligence duties and, potentially, extend such mediation to the other two shareholders of Cerrejón, i.e. Anglo American and BHP. This latter approach, postulated in the Australian and UK NCP’s Initial Assessment reports, requires consent of all parties to the mediation.

Following publication of the Initial Assessment, the parties and the involved NCPs agreed to conduct one mediation with all three companies with the Swiss NCP in the lead. This was due to the fact, that Glencore had acquired the shares of AA and BHP of El Cerrejón and become the sole owner of the coal mine.

The Swiss NCP offered its good offices, proposed the nomination of an experienced mediator, and provided draft Terms of reference (TORs) for the mediation. Following written exchanges, the Swiss NCP held a bilateral online meeting with GLAN, where the latter raised a number of remaining “non-negotiable issues,” that had allegedly been raised previously, and were preventing their participation in the proceedings. The Swiss NCP promptly informed GLAN of its decision to accept two of the six “non-negotiable issues”, while asking for clarification on other issues. GLAN refused at short notice to participate in a rescheduled first mediation meeting that was focused on finalising the TORs. On 29 August 2022, GLAN submitted a 20-page letter stating the conviction of GLAN and the six supporting NGOs that negotiations on the TORs for the mediation had irrevocably failed and asking the Swiss NCP to make a Final Statement in relation to the Specific Instance it had received.

On 20 December 2022, the NCP published a final statement considering the specific instance concluded without agreement between the parties. The Swiss NCP issued recommendations that:

• Glencore maintain a dialogue with all stakeholders, including the submitting party, its supporting NGOs, and other local relevant groups on issues raised in the submission
• Glencore ensure that its due diligence policies foster RBC at Cerrejón

The Australian and UK NCPs will publish separate final statements regarding Anglo American and BHP, referring to the outcomes in this case.

There is no follow up planned for this specific instance. The Swiss NCP will, as is its standard practice, send requests for feedback to the involved parties in an aim to continuously improve its work.

#contributed #directlylinked #stakeholderengagement #remedy #duediligence #pollutionandwastemanagement #naturalresources #extractives #mining #coordination #parallelproceedings #externalmediators #localsubsidiary #fortune500 #recommendations