Canadian Mining Companies and Human Rights Violations Abroad: Part I
This post is first of a three-part series examining Canadian multinational corporations, particularly within the extractive sector, and the issue regarding human rights violations caused by their actions abroad.
By Diana Norwich
In its July 2015 Concluding Observations on Canada’s compliance with the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee expressed concern over the “allegations of human rights abuses by Canadian companies operating abroad, in particular mining corporations and about the inaccessibility to remedies by victims of such violations”.(1) Last November, the Inter-American Commission on Human Rights (IACHR) released a statement on its 153rd Session, stressing its apprehension over reports of alleged human rights violations in Latin America, and urged the Organization of American States (OAS) to “adopt measures to prevent the multiple human rights violations that can result from the implementation of development projects, both in countries in which the projects are located as well as in the corporations’ home countries, such as Canada.” (2) As well as submitting reports of violations to these human rights bodies, some have turned to taking legal action against Canadian companies in Canadian courts, as seen in ongoing lawsuits against Tahoe Resources and Hudbay Minerals.
This may be considered the Canadian iteration of the chronic quandary of finding and holding legal accountability to transnational corporations (TNCs) in their home state, for the misconduct of their affiliates abroad. Over 50% of the world’s mining companies are headquartered in Canada, holding interests in properties across more than 100 countries. (3) When a violation of international humanitarian law occurs on the site of one of these mines outside of Canada, can the Canadian company be held legally responsible in their home state? Should it? The serious allegations of human rights abuses abroad, some of which are outlined in the report submitted by the Canadian Network on Corporate Accountability to the IACHR, raise pressing questions on Canada’s extraterritorial obligations. In many of these situations, the remedies that the domestic jurisdiction in which these violations occur can offer are inadequate, or entirely out of reach. In the background of the plaintiffs’ claims against Tahoe Resources, which asserted liability for severe shooting injuries allegedly caused by Tahoe’s mining security personnel, hangs concerns of the lack of judicial independence and corruption in Guatemala. Regardless, in their judgement issued November 9th, the British Columbia Supreme Court exercised forum non conveniens, declining jurisdiction in favour of Guatemala as “clearly the more appropriate forum”. (4) With these events, it is apparent that, given their considerable economic influence (in 2010, Canadian mining companies held 41% of the larger-company mineral exploration market in Latin America and the Caribbean) (5) and border-transcending dimensions, the actions of Canadian mining corporations play a significant role in the human rights conditions of their operational spaces, a role for which many stakeholders are demanding greater accountability and oversight from the Canadian government.
The business structures, multiple jurisdictions and the entangled nature of the interests of involved actors make a clear-cut division of responsibility difficult. As exactingly summarized by Professor John Ruggie, the former UN Special Representative of the Secretary General on Business and Human Rights, “[t]he root cause of the business and human rights predicament today lies in the governance gaps created by globalization – between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation. How to narrow and ultimately bridge the gaps in relation to human rights is our fundamental challenge.” (6) Professor David Bilchitz, a human rights and constitutional law professor and Chair of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, identifies three legal doctrines which exacerbate the accountability gap and prevent access to remedy for victims of human rights violations:(7)
- The jurisdictional challenge: International law generally gives each state sovereignty over its own internal affairs, meaning that although the home state may have jurisdiction over a parent company that has incorporated in that state, it has no jurisdiction over the parent company’s foreign subsidiaries. Although the Maastricht Principles (8) provide that “[a]ll States must take necessary measures to ensure that non-State actors which they are in a position to regulate…such as…transnational corporations and other business enterprises, do not nullify or impair the enjoyment of economic, social and cultural rights”, there are serious considerations a state must balance when exercising extraterritoriality (as detailed by Jennifer Zerk in her report for the Special Representative of the UN Secretary General on Business and Human Rights).
- Weak governance zones: Certain jurisdictions may lack an independent judiciary, or its laws may not be properly enforced. States wishing to encourage foreign direct investment may be reluctant to impose or enforce regulations on these businesses.
- Corporate structure and the separate legal personality: TNCs are not one entity. They are typically comprised of separate corporations constituted individually for different countries, each considered its own distinct legal entity with limited liability. As Professor Bilchitz puts it, “How does one hold the main corporate structure (or actors therein) accountable for its failure to meet its human rights obligations where it is divided into distinct legal entities across national borders?” (9)
In my next post, I will outline the current international and domestic framework of norms that have been established to address this issue, as well as transnational private regulation.
(1)UNHRC, “Concluding observations on the sixth periodic report of Canada”, CCPR/C/CAN/CO/6 (July 2015).
(2)OAS, “IACHR Wraps Up its 153rd Session” (7 Nov 2014), online: <www.oas.org/en/iachr/media_center/PReleases/2014/131.asp> [6].
(3)Government of Canada, “Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad” (June 2015), online: <www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/Enhanced_CS_Strategy_ENG.pdf.>
(4)Garcia v Tahoe Resources Inc, 2015 BCSC 2045, [5].
(5)Natural Resources Canada, “Canadian Global Exploration Activity”, online: <www.nrcan.gc.ca/mining-materials/exploration/8296>
(6)UNHRC, “Protect, Respect and Remedy: a Framework for Business and Human Rights” A/HRC/8/5, online: <www.reports-and-materials.org/sites/default/files/reports-and-materials/Ruggie-report-7-Apr-2008.pdf> 3.
(7) David Bilchitz, “The Necessity for a Business and Human Rights Treaty,” available at SSRN 2562760 (2014) 15-16.
(8)Maastricht Principles on Extraterritorial Obligations of States on in the area of Economic, Social and Cultural Rights. online
(9)Bilchitz, 16.
