By Grahame Russell
Canada does not have the laws or political oversight mechanisms – let alone the political will – to hold accountable our mining companies.
Over the past 15 years or so, there has been a growing number of reports about environmental harms, human rights violations and repression caused by Canadian mining companies around the world. The sheer volume of documented problems show it is not a question of a “few bad apples”, but rather a systemic, industry-wide problem – one that will not go away without serious political and legal challenges and reforms.
As the reports of harms, violations and repression pile up, it has become equally clear that Canada does not have the laws or political oversight mechanisms – let alone the political will – to monitor and hold accountable our mining companies. Impunity and immunity from legal liability are the norm in Canada.
Recently, the Toronto Star newspaper got it partly right, calling on the Canadian government to pass legislation “to make mining companies accountable for respecting human rights and environmental standards.”
Where the Star got it wrong was to call for a revamped version of Bill C-300, a proposed piece of legislation defeated in the Canadian Parliament in 2010. Leaving aside the intentions of the framers of Bill C-300, which would have established a political body to investigate allegations of mining related harms, it is not the law needed or deserved by victims around the world of Canadian mining caused harms, violations and repression. It is not a law that would deter our companies from mining in places and in ways that ending up causing, almost predictably, harms, violations and repression.
Through my work with Rights Action, I have been involved since 2003 in documenting Canadian mining company harms in Guatemala and Honduras around mines owned by Goldcorp Inc, Aura Minerals, Hudbay Minerals/Skye Resources, Tahoe Resources and KCA/Radius Gold.
On Oct. 24, 2016, the Justice and Corporate Accountability Project (JCAP) at Osgoode Hall Law School released a report that tracks twenty-eight Canadian companies, in thirteen countries of Latin America, from 2000 to 2015. Key findings: At least 44 people have been killed, and 30 of these were targeted killings; over 400 people have been injured (apart from workplace injuries); over 700 people have been “criminalized” by the corrupted legal systems, including arrests and detentions.
“We know this report is only the tip of the iceberg”, said Shin Imai, Osgoode Law Professor and director of JCAP. “Because of the extensive resources required to document these incidents, we were not able to include [in our report] death threats, deliberate burning of crops and property destruction, forced displacement of Indigenous people, reported assassination attempts without reported injury, illness from environmental contamination, or psychological trauma from any of the violence.”
Since 1999, MiningWatch Canada has been at the forefront of reporting on the breadth of harms, violations and repression occurring at mining operations across Canada and around the world.
As the reports pile up, there has been an almost pathological denial or ignoring of the findings of past and present governments, by parliament and the senate, and by the mining industry itself. With some important exceptions, the media is not reporting properly on the extent of this “Canadian” issue. This pathology exists in the investment sector as well. Most private and public funds (including pension funds like the Canada Pension Plan) invest in mining companies operating around the world, maximizing profits (their fundamental legal requirement) while denying or ignoring the harms, violations and repression.
There are now renewed efforts spearheaded by human rights and social justice organizations across Canada, to pressure the government to establish an ombudsperson to investigate human rights violations connected to Canadian-owned mines around the world. This would be an important step forward. It is not enough.
Admittedly, criminal and civil law reform cannot and will not address the multitude of problems associated with the endless, unchecked expansion of profit-driven resource extraction companies (Canadian and other) operating across the planet, and under the seas. However, at a bare minimum Canada must end the double standard in legal accountability and access to basic criminal and civil law remedies.
There are a few precedent-setting civil lawsuits in Canadian courts now attempting to hold Canadian companies (Hudbay Minerals, Tahoe Resources, Nevsun Resources) responsible for repression and violations at their mines sites in Guatemala and Eritrea. The mining industry and major corporate law firms are paying close attention to these lawsuits that, in many ways, are exceptions to the norm of impunity and immunity from liability, and that are taking Canada’s laws and legal system in the right direction.
But, reforms are needed to facilitate and enable more civil lawsuits and also criminal proceedings. Enacting reforms would not affect the sovereignty of other countries, would not be an extra-territorial application of laws, and would not create new rights or responsibilities. Reforms are needed simply to ensure that if and when people around the world are victims of mining caused harms and/or crimes, they have access to criminal and civil law justice in Canada where the mining companies and investors are based, where all major decisions related to operations and investments are taken, and where the companies and investors receive, of course, all the financial benefits.
Today, individuals harmed by the actions of Canadian corporations abroad can sue in our courts. Our courts do have jurisdiction over our corporations, regardless of where they operate. But, reforms are needed to ensure that our courts – federally and provincially – actually exercise the jurisdiction they already have, instead of almost automatically sending the dispute about the actions of a Canadian company to other countries where there are high indicators of impunity, corruption and repression.
Civil law reforms are also needed to ensure that corporations can no longer avoid liability for harms, violations and crimes abroad through the manipulated argument that the home company – incorporated in Canada – cannot be held liable for the actions of wholly or partially owned and controlled subsidiary companies.
Reforms are also needed to the criminal code to enable the provincial or federal Attorney General’s office to investigate allegations of criminal mining company behavior in other countries that results in crimes.
Anything less is an unjust continuation of a double-standard and will help ensure a continuation of Canadian mining impunity and immunity from liability.
Grahame Russell is a non-practicing Canadian lawyer, writer and speaker, and since 1995, director of Rights Action.