Bringing Canadian mining to justice-gctid43675

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Bringing Canadian mining to justice

 Karyn Keenan

 2011-06-22, Issue 536

 http://pambazuka.org/en/category/features/74254

   

cc WikimediaCanadian  mining interests in countries around the world are valued at tens of  billions of dollars. Karyn Keenan looks at efforts by local communities  to hold mining companies to account for human rights abuses. 'The issue  of access to remedy for the victims of corporate abuse requires urgent  attention,' she writes.
 Canadian mining investment in Kmt has shown remarkable growth in  the past decade.[1] The continent currently receives roughly 20 per cent  of Canadian overseas mining capital, which in 2009 was valued at over  $20-billion.[2][3] As with other mining regions, Kmt is rife with  complaints concerning human rights abuse and environmental destruction  associated with these investments. Most recently, five people were  fatally shot at Barrick Gold's North Mara mine in Tanzania and  allegations have surfaced regarding sexual abuse at this operation.  Barrick reports finding 'credible evidence' that its security guards and  Tanzanian police sexually assaulted local women.[4]  
 
Canadian mining companies seem to enjoy impunity virtually everywhere  that they operate overseas. Many governments are unable or unwilling to  effectively regulate transnational corporations, and judicial  institutions are often compromised by myriad issues. It's not surprising  then, that the victims of Canadian corporate abuse turn their sights on  Canada. This is the jurisdiction where many mining companies are  granted legal personality through incorporation. Canada is also the  world's greatest source of capital for the sector.[5] The Canadian  government proactively partners with the mining industry, funding and  insuring overseas operations, both through domestic institutions and the  multilateral development banks. Canada provides political support to  its companies and is increasingly active in the overseas promotion of  'corporate social responsibility'. The Canadian government is also an  important shareholder in this sector via a public pension fund with  assets valued at $148-billion.[6]

Thus far, Canada has abdicated its governance responsibility regarding  the overseas activities of the mining sector, refusing to regulate  either the companies or the government agencies that support them, or to  take legislative action to ensure that non-nationals who are prejudiced  by the activities of Canadian companies are able to seek redress in  Canada.

In 1997, a group of indigenous Guyanese initiated a suit in the Superior  Court of Quebec. The Guyanese citizens were the victims of an  environmental disaster at the Omai gold mine. They sued for negligence  in Quebec, where the mine's majority owner, Cambior, was incorporated.  This was the first suit brought by non-nationals before a Canadian court  concerning the overseas operations of a Canadian mining company. The  court dismissed the case, declining to exercise jurisdiction. The judge  ruled that Guyana was the appropriate venue for the suit, despite expert  testimony regarding the inability of that country's judiciary to  provide the victims with a fair trial,[7] and ordered the plaintiffs to  pay the company special costs. Subsequent suits brought in Guyana were  also dismissed, leaving the victims without remedy.

The Cambior decision cast a decided chill on litigation in Canada  concerning overseas mining. Potential plaintiffs were discouraged by the  precedent and by the adverse costs award.
Buoyed by record-setting mineral prices, Canadian companies sustain an  unbridled expansion throughout the world, and allegations of human  rights and environmental harm continue to surface in their wake. Over  ten years since the Cambior decision, there is greater awareness in  Canada regarding the impacts of the global mining industry, including in  the legal community, and foreign nationals are once again testing the  legal waters.

Since 2009, foreign plaintiffs have brought four cases against mining  companies before Canadian courts. The first was launched in the province  of Ontario by three Ecuadorians who were threatened and physically  assaulted by security forces allegedly contracted by mining company  Copper Mesa.[8] The plaintiffs sued the Toronto Stock Exchange (TSX) and  two of the company's directors in negligence. The Ontario Superior  Court dismissed the plaintiffs' arguments that the defendants owed them a  legal duty of care, meaning that neither the TSX nor the corporate  directors had sufficient connection to the plaintiffs to establish an  enforceable legal obligation. The decision was upheld on appeal.

Two additional cases[9] involving Guatemalan plaintiffs have been  launched in Ontario against mining company Hudbay Minerals Inc. The  first concerns allegations that security guards employed by the company  killed an indigenous leader who opposed the company's operations. The  second suit was brought by 11 indigenous women who claim to have been  gang-raped by company security guards, police officers and army officers  when their families were evicted to make way for the company's  operations. The Ontario Superior Court has yet to rule on whether it  will accept jurisdiction and hear the Guatemalans' claims.

Finally, last year, Congolese nationals filed a petition for  certification as a class action before the Superior Court of Quebec, the  same court that refused to hear the Guyanese petition. The case  concerns egregious human rights violations that took place in 2004 in  the Congolese town of Kilwa. At least 73 civilians were summarily  executed when the Congolese Armed Forces attacked local residents.  Others suffered torture and illegal detention. A UN investigation  revealed that Canadian company, Anvil Mining, provided the army with  planes, vehicles, personnel and food that were used during the attack.
 
In 2006, a Congolese military prosecutor charged Congolese soldiers  implicated in the event with war crimes. Three expatriate employees of  Anvil Mining were also indicted for their alleged complicity in the  crimes. However, the military court acquitted all defendants, including  the former general manager of Anvil's Congolese subsidiary, Pierre  Mercier, a Canadian national. The judicial proceedings were widely  criticised. Louise Arbour, former justice of the Supreme Court of Canada  and then the United Nations High Commissioner for Human Rights,  expressed concern regarding both the judicial process and its  outcome.[10]
 
The 2010 petition in Quebec was launched by an association comprised of  Kilwa survivors and the relatives of victims. The plaintiffs allege that  because Anvil provided the Congolese Armed Forces with logistical  support in the commission of human rights violations, the company is  therefore complicit. In particular, the plaintiffs allege that Anvil  vehicles were used to transport civilians to the periphery of the town,  where they were executed, and that airplanes leased to the company were  used to bring soldiers to Kilwa, where the crimes were committed.

In March, Anvil sought to have the case dismissed on jurisdictional  grounds. It argued that the connection between Quebec and the incidents  in question was too tenuous for the Quebec court to assume jurisdiction.  The company emphasised, for example, that its head office is located in  Australia and that no decision-making regarding operations at its  Dikilushi mine in the Democratic Republic of Congo were made in Quebec.  Finally, Anvil argued that should the court find jurisdiction, it should  decline to hear the case, deferring to more appropriate venues such as  the DRC and Australia, as occurred in the Cambior suit.

The following month, the Superior Court denied Anvil's motion for  dismissal and assumed jurisdiction in the case. Justice Emery found that  'it is impossible to determine that the authorities of the Congo or of  Australia would clearly be more appropriate for hearing the case. In  fact, at this stage in the proceedings, everything indicates that if the  court were to refuse to accept the application [...], there would be no  other possibility for the victims' civil claim to be heard.'[11]

The court's decision is significant. It indicates a new openness on the  part of the judiciary, at least in the province of Quebec, to consider  cases involving foreign plaintiffs and events that occur outside Canada.  However, in the latest chapter of what promises to be a hotly-contested  process, the company was granted leave to appeal the court's decision  in early June.
 
The recent wave of litigation in Canada featuring foreign plaintiffs is  an encouraging development that may offer victims some measure of  redress for the damages they have suffered, while creating a deterrent  for corporate malfeasance. While efforts advance to hold transnational  corporations to account, the situation is far less encouraging with  respect to another supranational actor - the international financial  institutions.

In 2004, prior to the Kilwa massacre, the Multilateral Guarantee  Investment Agency (MIGA) granted Anvil a US$13.6 million guarantee  against the risk of war and civil disturbance for its Congolese mine.  MIGA, which is part of the World Bank Group, facilitates private sector  investment in developing and emerging markets. The International Finance  Corporation (IFC), another World Bank agency, plays a similar role by  providing private companies with loans and equity. In 2010, MIGA and the  IFC provided the global mining industry with over US$900-million in  support.[12] Given the multilateral nature of these institutions,  Canadian courts are unlikely to accept jurisdiction in cases involving  allegations of their complicity in the misconduct of their clients.

The issue of access to remedy for the victims of corporate abuse  requires urgent attention. An obvious priority is to strengthen judicial  institutions in the countries where abuse takes place. However, it's  also critical that the judiciary in multinationals' 'home' countries,  such as Canada, hear cases involving the alleged negligence and criminal  wrong-doing of their companies in foreign countries, especially when  the victims lack other viable options. The role of home governments in  facilitating human rights violations and other types of abuse should  also be examined by domestic courts.

Finally, as with the private sector, the multinational nature of  international financial institutions should no longer hinder judicial  oversight.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Karyn Keenan is the program officer at Halifax Initiative Coalition
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News

NOTES:

[1] Almost 700 per cent between 2001 and 2009.
[2] All values in Canadian dollars except where otherwise indicated.
[3] Natural Resources Canada. Unpublished data.
[4] http://www.thestar.com/business/article/999866--barrick-probes-assault-allegations
[5] http://www.tmx.com/en/pdf/Mining_Sector_Sheet.pdf
[6] http://www.cppib.ca/Investments/Total_Portfolio_View/default.html
[7] See Scott, Craig and Robert Wai, 'Transnational Governance of  Corporate Conduct through the Migration of Human Rights Norms: The  Potential Contribution of Transnational "Private" Litigation,' in C.  Joerges, P. Sand and G. Teubner, eds., Transnational Governance and  Constitutionalism (Oxford: Hart Publishing, 2004) 287-319.
[8] http://www.ramirezversuscoppermesa.com/
[9] http://www.chocversushudbay.com/
[10] http://bit.ly/kYADza
[11] http://www.ccij.ca/media/ccij-in-the-news/index.php?DOC_INST=15
[12] The World Bank Group in Extractive Industries. 2010 Annual Review.

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