A coalition of Canadian NGOs, the Canadian Network on Corporate Accountability, is calling on the government to create legal mechanisms to go after Canadian mining companies suspected of committing human rights and environmental abuses abroad. It is pressuring Ottawa to create an oversight office with real powers to investigate the extractive sector, and to open access to Canadian courts to foreign nationals seeking legal redress.
Joining the Network at a recent news conference in Ottawa was Angelica Choc, the widow of Guatemalan community activist Adolfo Ich Chamán, who was shot to death at the Fenix mining project, operated by a subsidiary of Toronto-based Hudbay Minerals Inc. She and other plaintiffs brought three related actions against Hudbay Minerals and its Guatemalan subsidiary, alleging that the Canadian parent company is directly responsible for the actions of security forces at the mining project who allegedly committed human rights abuses, including murder and gang rape.
The case highlights the need for better “access to justice and accountability" for foreign nationals in Canada’s justice system, which “has to be open to people like Angelica,” says Alex Neve, secretary general of Amnesty International's Canadian chapter, which is a member of the network.
There have been some efforts over the years to ensure better corporate responsibility by Canadian companies operating abroad. In 2009 the federal government appointed a CSR counsellor, Marketa Evans, to encourage Canadian companies in the extractive sector to act responsibly. But the network calls her position "hopelessly ineffective."
Though Evans' office hears complaints about Canadian mining companies, it relies entirely on the voluntary participation of industry and has no tools other than mediation to provide remedy.
Lawmakers in the NDP and Liberal party have tried, without success, to get legislation through the House of Commons that would create better oversight of the Canadian extractive industry abroad.
In 2009, Liberal MP John McKay introduced a private member’s bill in the House of Commons which aimed to withdraw federal financial and consular support for companies acting against established CSR requirements. The bill was was defeated by the Conservatives in its third reading, with some help from a handful of opposition MPs --- most of whom represent ridings with large mining secors -- who didn't show up for the vote.
In 2011, New Democrat Peter Julian attempted a similar feat with C-323 (formerly C-354), which would have given non-citizens to right to sue Canadian mining companies for not respecting treaties or international agreements in the Canadian federal court system. That bill never made it to debate on the floor of the House.
And yet, the idea of alien tort laws isn’t entirely foreign to the Harper Government – in 2011 it enacted changes to The State Immunity Act that allows victims to sue terrorist organizations, as well as foreign states that have supported entities which have committed terrorist acts.
Amnesty’s Neve also argues in favour of "some sort of law in Canada that opens the possibility for those abroad to sue Canadian companies." But even he acknowledges that it would be difficult to get Canadian courts to apply foreign laws and jurisprudence. "The ideal prospect would be to have a strong system local system that respects the rule of law," he says. But local government in many resource-rich nations fall short on this front, he says, and bribery and corruption often taint legal proceedings.
The Harper Government is moving forward with plans to make Canadian corporations publish more details of their financial payments to local governments as a means to combat corruption. Neve calls that "a step forward."
Meanwhile Angelica Choc and her supporters await their day in court. Generally, Canadian courts are reticent to hear civil suits against parent companies in connection with alleged crimes committed by international subsidiaries – that is, unless the Canadian company is clearly implicated in the wrongdoing. Neve readily admits that the jurisprudence is not on their side. But the applicants scored a coup when in July an Ontario Superior Court of Justice allowed their lawsuit against Hudbay Minerals to proceed to trial. Hudbay has not appealed the decision.
Robert Harrison, a partner at Fasken Martineau in Toronto, is the chief counsel for Hudbay in the case. He says the decision not to appeal was a judgement call, adding they could have taken it all the way to the Supreme Court, arguing that if the negligence can be proven, it wouldn't be the responsibility of the Canadian company.
According to Harrison, the case is going forward because the court, reading a "very narrow application" of the law, accepted that Hudbay could be responsible for the security forces named in the suit, as the applicants argued that the company had a very direct involvement in the practices of the private security at the mine. Harrison and the company are confident that a judge will not see it that way, and allow Hudbay Minerals the protection of the corporate veil.
"In terms of the law, it's not that remarkable," says Harrison. The applicants are drawing on a small pool of examples, mostly English cases involving industrial use of asbestos, where the courts found that the parent company had a direct involvement in the negligence.
Given the facts of this case, he says, "it's a real stretch."