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Independent Complaint Mechanism (ICM) / 06.12.2019
DEG complaint 18-002 PHC (Feronia)
re Plantations et Huileries du Congo SA (PHC)
Outline: Planned Mediation process
The Independent Complaint Mechanism (ICM) of the Deutsche Investitions- und
Entwicklungsgesellschaft mbH (DEG) received a complaint that concernes the DEG-financed
operation Plantations et Huileries du Congo SA (PHC), a subsidiary of Feronia Inc., a company
listed at the Toronto stock exchange.1 The complaint was lodged by a non-governmental
organisation (NGO), RIAO-RDC (Réseau d’Information et d’Appui aux ONG en République
Démogratique du Congo) and its chairperson Mr. Jean-François Mombia Atuku
(“Complainant”) on behalf of a number of people, including notables and other community
leaders from communities and groups from areas on two plantation sites in Boteka and
Lokutu, who claim that they have been negatively impacted by the project. The complaint is
asking the Independent Complaints Mechanism (ICM) to support a dispute resolution and
mediation in relation to the various identified issues, rather than carry out a compliance
review of DEG’s actions against its policies.
On January 7, the ICM published a Notice of Admissibility and declared the case admissible.
Under the terms of Para. 3.2.3 of its policy, the ICM Panel is required to conduct a preliminary
review of the issues raised by the complaint. The review took place during two visits to the
locations in Mai/June and August/September 2019.
The Panel was able to confirm the legitimacy of RIAO-RDC as a relevant actor capable of
representing local communities in the mediation process, particularly those people that have
supported the complaint. At the same time, the panel recognized and take note that larger
parts of the communities in Boteka, as well as in Lokutu, have similar concerns and would like
to be present in a mediation process, to select their own representative for a mediation and
do not want to be represented by someone else. The Panel considers the inclusion of further
stakeholders to be a sensible step to make the mediation meaningful in a search for a solution
for the overall situation at the locations. The complainant has indicated during the meetings
of our second trip support and agreement to broaden the base of stakeholders. Establishing
locally accepted representation for all concerned persons will thus be an important element
of any mediation/dispute resolution process. This needs to be coordinated with the
complainants – in the further process.
1
While the operation is also financed by Development Bank of the Netherlands (FMO) and other European
Development Finance Institutions in a consortium and while FMO is also part of the ICM, the complaint was
directed to DEG as consortium leader.
2
The preliminary review confirmed also that the issues highlighted in the complaint are
relevant issues that should be taken up in the mediation phase. Three issues raised in the
complaint are the following: (1) Land issues are at the core of the complaint document,
particularly the legitimacy of the land titles of the plantation in general and access rights of
communities to unused parts of the plantation sites. (2) Problems related to harassments,
intimidations, theft: The complaint claims that community members, including residents of
communities submitting the complaint, have been subject to regular harassments as well as
physical and human rights abuses by PHC security guards and the police. (3) Community
Participation: The complaint alleges that communities are inhibited in negotiations with PHC
given the limited access to information and knowledge of right and that participation and
community liaison work does not work properly. A fourth issues which was raised in all
meetings during the two sites visit, were aspects of the labour relationships (saleries, amount
of daily labourers, work safety etc.). While details and assessments of the issues vary between
the stakeholders, the willingness to focus on these issues – set out by the complainants – was
confirmed by all representatives of communities visited and the other stakeholder, including
PHC / Feronia.
Based on the findings in the Preliminary Review, the ICM Panel concludes the Preliminary
Assessment Phase and recommends that a dispute resolution be conducted. A second trip of
the ICM to the sites end of August 2019 confirmed that all actors /stakeholders with whom
the ICM was able to meet are interested in and supportive of a mediation. Details of (i) who
will be part of such a mediation, (ii) who is accepted as representatives of communities, (iii)
exactly what issues should be discussed, and (iv) a development of an understanding about
potentially good outcomes will have to be discussed with all actors at the beginning of the
mediation process. What is needed from all stakeholders is mutual trust: The mediation
process will depend on the willingness of all stakeholders to participate and discuss in a
cooperative manner and to avoid acts that may increase tensions at local levels. This is a key
commitment needed from all stakeholder. The mediation will start with the formulation of
relevant Rules of Engagement for the process to reduce intimidations or unfriendly acts and
that support the building of mutual trust.
Next steps in the process
A team of potential mediators needs to be identified starting in January 2020 and
presented to the parties for their consideration
A short process note describing the possible mediation process and a guidance handbook
for the mediation process will be prepared by the ICM and the selected mediators in early
2020.
In parallel, the above-mentioned Rules of Engagement for all stakeholders will be
developed with the mediators at the beginning of the process.
The discussion of the approach to mediation, including objectives and detailed rules of
engagement will take place during a third visit (a combined visit of the ICM and the
selected mediators) at the beginning of the second quarter of 2020.
3
The panel wishes to point out the following issues which need to be carefully considered in
developing the next steps and phases.
Agreement on mediation process representatives: mediation can only be successfully
started, when all stakeholders agree with such a process. While the preliminary review
proved that RIAO-RDC has a legitimate base at the two locations and represents parts
of the communities that supports the complaint, other communities visited would
prefer to be represented by either traditional leadership or other NGOs. Whether an
agreement on the setting, representation and on terms of references for a mediation
process can be achieved depends on the willingness of the stakeholders to collaborate
and compromise and is not under control of the ICM.
Timing and phasing for the two plantations: It will be part of the process to clarify and
concretize how a mediation in the context can be organized, given the significant
distance between the different locations of the company’s plantation sites, the
difficulties of travel and communication. Most community representatives met were
at least in favour of starting locally with the mediation.
It must be determined if the mediation shall include all three sites of the plantation
or only the two sites, which are covered in the complaint.
Agreement on issues to be covered: A successful mediation will depend on a careful
agreement over the issues to be covered during the mediation. The ICM does not know
yet if a common understanding of the issues can be reached. The process may benefit
from the preparation of an issue paper that can be used as a starting point for
discussions between the stakeholders. The issue paper could contain an overview on
different positions articulated by the stakeholders and could summarize finding of the
ICM and/or the mediation team on the issues
Nomination of a team of independent mediators: The ICM will propose a team of
potential mediators for the process with diverse backgrounds and skills. This should,
ideally, be a combination of national and international mediation experts. National
experts need to speak the local languages, an international mediator needs to have
experiences with such formats of mediation. The ICM is in contact the International
Accountability Network in the search for potential candidates. The proposed
mediators will be put to the parties, and must be subject to their agreement. No
mediator should be imposed by the ICM or any other person.
Steps in the mediation process during 2020
Phase I: Preparation of the Mediation: Questions that shall guide the preparation
phase for the mediation
All relevant actors have shown support for a mediation process during the pre-assessment
visits. During the preparation phase of the mediation the following issues need to be better
understood and clarified:
1. Who are the relevant stakeholders to be included in the mediation process and for
what reasons?
2. Can the outcomes of the Social Protocol process (and/or prior and other efforts by
the company and RIAO) be used as a basis for the mediation process?
4
3. Shall there be separate mediation processes in all locations of PHC / Feronia or only
one central round table to tackle all locations together? What are potential
locations for the mediation?
4. What needs to be done / achieved by all relevant stakeholders in advance and in
the preparation phase of a mediation?
5. How to organize sufficient capacity development for all stakeholder in order to
enable them to take part in the process
April / May 2020
First common meeting (Kick-off Mediation team (1 mediator Justicia et Pax; 1 mediator
National Human Rights commission DRC – CNDH) 1 international mediator; including joint
visit to the communities
May – August 2020
Capacity-development for all parties involved;
Establish Rules of Engagement
Clarify respresentation of stakeholders
Phase 2: Start of mediation
Define issues to be covered within the mediation (and those remaining outside this
process)
Key principles for mediation
There are a number of key principles for effective mediation which the ICM feels it is important
to set out here and communicate clearly to all those involved in the process.
The parties have indicated their willingness to participate in the mediation process and
we expect them to do so in good faith.
Mediation is voluntary, any party can choose to walk away from this process. Within
this in mind it is important for all parties to seek to maintain trust in the process where
possible, particularly the mediators themselves.
The mediation process should remain impartial throughout and not demonstrate any
preference for one point of view over others.
The aim of the process should at all times be to foster and seek compromise and
agreement.
There should be no steps by any party to the dispute, or other person, to influence the
selection of representatives or to deter or influence the participation of any party who
would potentially assist solution of that dispute.
Parties to the dispute and/or participants in the mediation process should conduct
themselves in a way which is supportive of the search of a solution to the problem and
does not undermine the work of the mediators or others supporting them.
= = = = = = = = = =

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Independent Complaint Mechanism (ICM)

  • 1. 1 Independent Complaint Mechanism (ICM) / 06.12.2019 DEG complaint 18-002 PHC (Feronia) re Plantations et Huileries du Congo SA (PHC) Outline: Planned Mediation process The Independent Complaint Mechanism (ICM) of the Deutsche Investitions- und Entwicklungsgesellschaft mbH (DEG) received a complaint that concernes the DEG-financed operation Plantations et Huileries du Congo SA (PHC), a subsidiary of Feronia Inc., a company listed at the Toronto stock exchange.1 The complaint was lodged by a non-governmental organisation (NGO), RIAO-RDC (Réseau d’Information et d’Appui aux ONG en République Démogratique du Congo) and its chairperson Mr. Jean-François Mombia Atuku (“Complainant”) on behalf of a number of people, including notables and other community leaders from communities and groups from areas on two plantation sites in Boteka and Lokutu, who claim that they have been negatively impacted by the project. The complaint is asking the Independent Complaints Mechanism (ICM) to support a dispute resolution and mediation in relation to the various identified issues, rather than carry out a compliance review of DEG’s actions against its policies. On January 7, the ICM published a Notice of Admissibility and declared the case admissible. Under the terms of Para. 3.2.3 of its policy, the ICM Panel is required to conduct a preliminary review of the issues raised by the complaint. The review took place during two visits to the locations in Mai/June and August/September 2019. The Panel was able to confirm the legitimacy of RIAO-RDC as a relevant actor capable of representing local communities in the mediation process, particularly those people that have supported the complaint. At the same time, the panel recognized and take note that larger parts of the communities in Boteka, as well as in Lokutu, have similar concerns and would like to be present in a mediation process, to select their own representative for a mediation and do not want to be represented by someone else. The Panel considers the inclusion of further stakeholders to be a sensible step to make the mediation meaningful in a search for a solution for the overall situation at the locations. The complainant has indicated during the meetings of our second trip support and agreement to broaden the base of stakeholders. Establishing locally accepted representation for all concerned persons will thus be an important element of any mediation/dispute resolution process. This needs to be coordinated with the complainants – in the further process. 1 While the operation is also financed by Development Bank of the Netherlands (FMO) and other European Development Finance Institutions in a consortium and while FMO is also part of the ICM, the complaint was directed to DEG as consortium leader.
  • 2. 2 The preliminary review confirmed also that the issues highlighted in the complaint are relevant issues that should be taken up in the mediation phase. Three issues raised in the complaint are the following: (1) Land issues are at the core of the complaint document, particularly the legitimacy of the land titles of the plantation in general and access rights of communities to unused parts of the plantation sites. (2) Problems related to harassments, intimidations, theft: The complaint claims that community members, including residents of communities submitting the complaint, have been subject to regular harassments as well as physical and human rights abuses by PHC security guards and the police. (3) Community Participation: The complaint alleges that communities are inhibited in negotiations with PHC given the limited access to information and knowledge of right and that participation and community liaison work does not work properly. A fourth issues which was raised in all meetings during the two sites visit, were aspects of the labour relationships (saleries, amount of daily labourers, work safety etc.). While details and assessments of the issues vary between the stakeholders, the willingness to focus on these issues – set out by the complainants – was confirmed by all representatives of communities visited and the other stakeholder, including PHC / Feronia. Based on the findings in the Preliminary Review, the ICM Panel concludes the Preliminary Assessment Phase and recommends that a dispute resolution be conducted. A second trip of the ICM to the sites end of August 2019 confirmed that all actors /stakeholders with whom the ICM was able to meet are interested in and supportive of a mediation. Details of (i) who will be part of such a mediation, (ii) who is accepted as representatives of communities, (iii) exactly what issues should be discussed, and (iv) a development of an understanding about potentially good outcomes will have to be discussed with all actors at the beginning of the mediation process. What is needed from all stakeholders is mutual trust: The mediation process will depend on the willingness of all stakeholders to participate and discuss in a cooperative manner and to avoid acts that may increase tensions at local levels. This is a key commitment needed from all stakeholder. The mediation will start with the formulation of relevant Rules of Engagement for the process to reduce intimidations or unfriendly acts and that support the building of mutual trust. Next steps in the process A team of potential mediators needs to be identified starting in January 2020 and presented to the parties for their consideration A short process note describing the possible mediation process and a guidance handbook for the mediation process will be prepared by the ICM and the selected mediators in early 2020. In parallel, the above-mentioned Rules of Engagement for all stakeholders will be developed with the mediators at the beginning of the process. The discussion of the approach to mediation, including objectives and detailed rules of engagement will take place during a third visit (a combined visit of the ICM and the selected mediators) at the beginning of the second quarter of 2020.
  • 3. 3 The panel wishes to point out the following issues which need to be carefully considered in developing the next steps and phases. Agreement on mediation process representatives: mediation can only be successfully started, when all stakeholders agree with such a process. While the preliminary review proved that RIAO-RDC has a legitimate base at the two locations and represents parts of the communities that supports the complaint, other communities visited would prefer to be represented by either traditional leadership or other NGOs. Whether an agreement on the setting, representation and on terms of references for a mediation process can be achieved depends on the willingness of the stakeholders to collaborate and compromise and is not under control of the ICM. Timing and phasing for the two plantations: It will be part of the process to clarify and concretize how a mediation in the context can be organized, given the significant distance between the different locations of the company’s plantation sites, the difficulties of travel and communication. Most community representatives met were at least in favour of starting locally with the mediation. It must be determined if the mediation shall include all three sites of the plantation or only the two sites, which are covered in the complaint. Agreement on issues to be covered: A successful mediation will depend on a careful agreement over the issues to be covered during the mediation. The ICM does not know yet if a common understanding of the issues can be reached. The process may benefit from the preparation of an issue paper that can be used as a starting point for discussions between the stakeholders. The issue paper could contain an overview on different positions articulated by the stakeholders and could summarize finding of the ICM and/or the mediation team on the issues Nomination of a team of independent mediators: The ICM will propose a team of potential mediators for the process with diverse backgrounds and skills. This should, ideally, be a combination of national and international mediation experts. National experts need to speak the local languages, an international mediator needs to have experiences with such formats of mediation. The ICM is in contact the International Accountability Network in the search for potential candidates. The proposed mediators will be put to the parties, and must be subject to their agreement. No mediator should be imposed by the ICM or any other person. Steps in the mediation process during 2020 Phase I: Preparation of the Mediation: Questions that shall guide the preparation phase for the mediation All relevant actors have shown support for a mediation process during the pre-assessment visits. During the preparation phase of the mediation the following issues need to be better understood and clarified: 1. Who are the relevant stakeholders to be included in the mediation process and for what reasons? 2. Can the outcomes of the Social Protocol process (and/or prior and other efforts by the company and RIAO) be used as a basis for the mediation process?
  • 4. 4 3. Shall there be separate mediation processes in all locations of PHC / Feronia or only one central round table to tackle all locations together? What are potential locations for the mediation? 4. What needs to be done / achieved by all relevant stakeholders in advance and in the preparation phase of a mediation? 5. How to organize sufficient capacity development for all stakeholder in order to enable them to take part in the process April / May 2020 First common meeting (Kick-off Mediation team (1 mediator Justicia et Pax; 1 mediator National Human Rights commission DRC – CNDH) 1 international mediator; including joint visit to the communities May – August 2020 Capacity-development for all parties involved; Establish Rules of Engagement Clarify respresentation of stakeholders Phase 2: Start of mediation Define issues to be covered within the mediation (and those remaining outside this process) Key principles for mediation There are a number of key principles for effective mediation which the ICM feels it is important to set out here and communicate clearly to all those involved in the process. The parties have indicated their willingness to participate in the mediation process and we expect them to do so in good faith. Mediation is voluntary, any party can choose to walk away from this process. Within this in mind it is important for all parties to seek to maintain trust in the process where possible, particularly the mediators themselves. The mediation process should remain impartial throughout and not demonstrate any preference for one point of view over others. The aim of the process should at all times be to foster and seek compromise and agreement. There should be no steps by any party to the dispute, or other person, to influence the selection of representatives or to deter or influence the participation of any party who would potentially assist solution of that dispute. Parties to the dispute and/or participants in the mediation process should conduct themselves in a way which is supportive of the search of a solution to the problem and does not undermine the work of the mediators or others supporting them. = = = = = = = = = =