Caroline Briand, a partner at Cain Lamarre in Montreal, traveled to Kenya and Tanzania in January as a technical advisor to the Supporting Inclusive Resource Development (SIRD) in East Africa project. Yves Faguy interviewed the Aboriginal and constitutional lawyer about the extractive sector in those countries, and in Canada as well, its impact on women, and why lawyers should be more mindful the trauma associated with land loss.
N: Can you start by telling us about your time in East Africa, and what it was you were called upon to do?
Caroline Briand: In Kenya, Canadian and Kenyan lawyers were invited to speak about our perspective mining rights, women's property rights, and land agreements between developers from the extractive sector and local communities. I talked about issues around the relocation of communities and compensation for land use in mining projects. I also participated in a panel on dispute resolution in the context of mining. In Tanzania, I addressed best practices in community consultation, and in land acquisition and relocation. The goal was to train practitioners, so we participated in some practical workshops. One of the other goals is to build their capacity to either train their peers afterward or get them involved in building toolkits or providing comments on the development of policies, for example. We had a very eager and driven audience.
N: What are some of the biggest challenges, as you saw it, for women in Kenya and Tanzania?
CB: Well, the legislation is still evolving to afford women equal property rights and equal opportunity. There are also cultural differences. Even within Tanzania, our local peers explained there are different ethnic groups with different views on the place of women in society. So, depending on where the mining project is located, the impact on women can be very different. And it requires implementing different strategies across the country depending on those local cultural differences. Generally, we see that women are less likely to get paying jobs from the mining sector, which isn't unlike what we see in Canada. Meanwhile, women suffer from environmental impacts. In East Africa, for example, access to water for personal use and agriculture is a big issue. There's also an influx of male workers in communities, which can translate into a rise in sexual violence against women, STIs, unwanted pregnancies, etc. But again, it's not like that isn't a concern in our own country. But in Tanzania and Kenya, the impacts are amplified.
N: So, what were your counterparts particularly interested in?
CB: One of the things that our group appreciated in Tanzania was the focus on trauma-informed advocacy. It's something that we're slowly incorporating into our practice here in Canada. In cases of sexual violence, we've realized that there's a way to approach those cases and that is more informed by the realities experienced by women who are survivors.
N: So how do you apply those concepts in East Africa?
CB: In Tanzania, for example, we looked at the trauma resulting from relocation and being dispossessed of your lands, your home and your means of livelihood. Some local groups lead a pastoral way of life, and they need vast spaces to raise their cattle. Others rely on crops. But when they're displaced, even if the mine pays the head of the family (often a man) a salary for X number of years, or a lump-sum compensation, there's a trauma that is the result of being cut from your land. We also see this in the Canadian context-- particularly the effects of intergenerational trauma among Indigenous people —it's part of the colonial heritage still very much alive in Canada. So, we look at the types of reactions we displayed by people who have experienced trauma. Some people react angrily, others are distrustful towards authority, and sometimes even of their lawyers. Others display "fight or flight" types of reactions. Lawyers benefit from being trained to recognize the effects of trauma on communications and the professional relationship. We also talked a lot about how lawyers in the pro bono setting, or who work with communities or community organizations are exposed to trauma and the risk they face of suffering from vicarious trauma at some point.
N: How should governments and the extractive industries address these issues surrounding trauma in a more constructive way?
CB: First, I think that both governments and the industry underestimate the trauma associated with land loss. And here in the West, we tend to think of land and property as having monetary value. But land is also tied to a way of life; it's tied to spirituality; it's tied to language. So a loss of land is not easily translated into monetary value. As Canadians, we also have to keep in mind that community-held land is not something that fits easily into civil or common law property concepts. At the same time, we've been having conversations for many years now about Indigenous lands, which is why many extractive companies are now proactive in reaching out to Indigenous groups.
N: In Kenya, there are community development agreements, which are mandated by law, and require companies in the extractive sector to spend part of their annual revenue to finance community projects. Is there something similar in Tanzania?
CB: Tanzania modified its Mining Act in 2017 to encourage local participation and to impose corporate social responsibility (CSR) plans. On paper, it looks very good — who the industry should engage with to create its corporate social responsibility plans, how often it should review its plan. There are reporting requirements. However, there are concerns about just how efficiently it translates in practice. For example, it isn't always clear who extractive companies should engage with. Who's the proper local authority? Does it legitimately represent all the interests of all the people who are impacted? Does it include women, elders and youth? Have there been consultations? And then the elephant in the room – just like in Kenya and in Canada – is what's the benchmark? What is the adequate amount of compensation or type of accommodation that the community should get in the circumstances? Also, most of “community development agreements” (or “Impacts and Benefits Agreement” in Canada) are confidential. We see that here in Canada too, when companies negotiate with a community or a group. While they may arrive at a result that the community feels is a good deal, only to find out later that the neighbouring community got more benefits or a more workable agreement with the same company.
N: So, there's no transparency?
CB: Most companies will make a public announcement and do a little ribbon-cutting. But the financial details of the benefits are often confidential. That being said, it's understandable that corporations want to keep some sensitive information private or confidential to a certain extent. However, local communities need to be more savvy of what's going on elsewhere in their country and even in other parts of the world.
N: Where do you think the CBA's efforts should focus right now in East Africa?
CB: Mostly, we need to continue supporting the local bars in East Africa in the projects that they've identified as priorities. And we need to keep talking to our counterparts in those countries even when we're not traveling to Uganda, Tanzania or Kenya, our partner jurisdictions. CBA volunteers in Canada are often called upon to provide comments on policy or draft legislation relevant to the extractives industry, or on gender issues. It's really interesting work, and it's an opportunity for us to share our best practices and approaches that we've developed in Canada. The benefits of this collaboration go both ways: It as valuable an experience for a Canadian lawyer to learn from exchanges with lawyers in those countries about their practices.
SIRD is a CBA International Initiatives project, funded by Global Affairs Canada, implemented in partnership with the East Africa Law Society, the Law Society of Kenya, the Tanganyika Law Society and the Uganda Law Society, to increase economic growth for East Africans, particularly women and vulnerable groups affected by extractive sector operations. CBA builds capacity of local counterparts and stakeholders in partner jurisdictions on social acceptability, sustainable development, and gender and community rights in the context of natural resources development projects.