Uncategorized

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)

  1.  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).
  2.  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.
  3. 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.

By |December 22nd, 2015|Blog, Uncategorized|

“Evening with Dallaire” a Huge Success

On September 16, 2013, CLAIHR, in partnership with Child Soldiers Initiative and The Law Society of Upper Canada, hosted LGen Roméo Dallaire (Ret) and MP Paul Dewar for a panel discussion on child soldiers, conflict minerals, and Canadian responses.

Thank you to everyone who made this event a success, including Shangri-La Hotel Toronto for providing our guests’ accommodations. In case you missed the action, you’ll be pleased to know that we live-Tweeted the event, the summary for which is available here.

Happy reading!

By |September 18th, 2013|Uncategorized|

An evening with L.Gen. Roméo Dalliare (Ret.)

L.Gen. Roméo Dallaire (Ret.) will share insights on the plight of child soldiers in conflict zones during a Law Society panel discussion with NDP Foreign Affairs Critic Paul Dewar.

Bencher Paul Schabas, chair of Law Society of Upper Canada’s Human Rights Monitoring Group will moderate.

The event is presented by CLAIHR in association with the Roméo Dallaire Child Soldiers Initiative (CSI)

Date: Monday, September 16, 2013
Time: Discussion will start at 5:30PM; Guests are invited to a post-event reception at 7PM
Location: Osgoode Hall (130 Queen St W, Toronto) in the Lamont Room
RSVP: equityevents@lsuc.on.ca or (416) 947-3413/(800) 668-7380 ext. 3413

Thank you to everyone who has supported this event, including the generous sponsorship of Shangri-La Hotels Toronto. The event is officially SOLD OUT now. Please follow us on Twitter (@CLAIHR) and use the event hashtag #EveWithDallaire to join the discussion.

This event is a free public program. Lawyers in attendance may count this program as 1.5 Substantive Hours of their Continuing Professional Development requirement.

**Photographs and video taken at this event may be used in Law Society of Upper Canada, CLAIHR and CSI publications.

By |August 12th, 2013|Uncategorized|

Dr Kapila, Former Head of UN in Sudan, to speak at Toronto event May 10th

CLAIHR is proud to partner with Canadian International Council and Gowlings LLP to present a free keynote event featuring Dr Mukesh Kapila OBE, former Head of the United Nations in Sudan. In the talk, entitled Why do our global institutions fail to prevent & protect against mass atrocities?, Dr Kapila will reflect on his experiences in Darfur when he attempted to alert the world to the unfolding genocide and will consider the current crises in Sudan today. He will draw upon his extensive international experience working within the UK government, the UN and Red Cross movement which also took him to Rwanda and Bosnia. Dr Kapila will highlight the importance of individual accountability as well as collective responsibility in the prevention of genocide and other crimes against humanity in Sudan and around the world and will pose lessons to be drawn for future practice.

Date: Friday, May 10, 2013
Time: Noon (attendee sign-in will begin at 11:45AM)
Venue: Gowlings LLP, First Canadian Place, 100 King St W, 16th Floor

Registration Instructions:
Participants *must* pre-register. No walk-ins allowed. Deadline to pre-register is 5PM, Thursday, May 9th.

By email: toronto [at] opencanada [dot] org
By phone: 416-590-0630
Online: http://cictoronto10may2013.eventbrite.ca/

Additional Details:
Light refreshments will be served after the talk.
Program is eligible for 1.5 hours of substantive CPD with LSUC.

Click here to download event flyer.

Dr Kapila’s New Book, “Against a Tide of Evil”
Dr Kapila is in Toronto as part of a cross-Canada tour to promote his new memoir about his efforts to bring attention to the mass atrocities in Darfur while he was UN Chief in Sudan. The book was launched in Geneva at the start of May, to coincide with the 10 year anniversary of the horrific events in Darfur. A portion of the proceeds from the books sold through the UK non-profit organization Aegis Trust will go towards preventing future mass atrocities.

MK Geneva press release to read the news release by Aegis Trust on the book and its launch in Geneva.

By |April 28th, 2013|Uncategorized|

CLAIHR’s 2011 AGM

CLAIHR will be holding it’s Annual General Meeting on July 12 at 6:00 PM for the purpose of reviewing its financial statements for the past fiscal year.  The meeting will be held at 1 Queen Street East, Suite 1620 in Toronto and all current members are invited to attend.

 

By |July 12th, 2011|Uncategorized|

CLAIHR joins International Coalition for R2P

CLAIHR is proud to announce its recent membership in the International Coalition for the Responsibility to Protect. CLAIHR is the first Canadian NGO to join the international coalition and we  look forward to working with this global network to further promote the principles of the Responsibility to Protect.   The Responsibility to Protect provides a framework to determine when outside intervention is required in domestic crises so that the international community can provide protection to civilians when their government is unable or unwilling to do so.  As part of our commitment to the principles of R2P, CLAIHR will continue its work in education and awareness raising for this important international legal norm in the Canadian context.

By |May 18th, 2011|Uncategorized|

Responsibility to Protect and the Libyan Crisis

CLAIHR President Jillian Siskind

CLAIHR President Jillian Siskind speaks about the Responsibility To Protect

On March 26th, 2011, CLAIHR’s President, Jillian Siskind, delivered the keynote address for a two-day symposium at the University of Toronto titled “Deconstructing Humanitarian Aid in the 21st Century”.  The symposium was organized by the International Relations Society at the Munk School of Global Affairs and featured many speakers and panellists in the field of human rights.

Delegates were presented with a comprehensive investigation of contemporary issues relating to the politics of humanitarian aid and intervention.  In particular, the symposium offered a well-timed opportunity for students, scholars, practitioners and individuals interested in human rights to gather and discuss relevant human rights issues concerning the recent turmoil in the Middle East.

Jillian provided the delegates with an overview of the legal framework for humanitarian intervention and the responsibility to protect with the corresponding political considerations inherent in such actions.  The focus then turned to the current armed conflict in Libya, with first the background history of the country, followed by a political discussion of the current crisis and the response of the international community.

Click here to read Jillian’s speech.

By |April 26th, 2011|Uncategorized|