June 14, 2022
By: Lauren Salim
Mining companies globally have a reputation for poor environmental and human rights practices. Violations include forced relocation, unlawful confinement of protestors, murder, and rape, among other atrocities. Canadian companies, which dominate the global mining industry, are among the worst offenders.
Currently, over 1,000 Canadian companies operate in over 100 countries, making up 75% of the world’s mining and exploration companies. Additionally, of the mining companies accused of environmental and human rights abuses globally, 34% are Canadian.
In Latin America in particular, Canadian corporations operate over half of the mining in the region and are responsible for a great deal of violence and human rights abuses. Guatemala is among the countries most affected by violence related to Canadian mining operations, which has been documented in Catherine Nolin and Grahame Russell’s recently published collection of testimonies by Guatemalan Indigenous community leaders, civil society activists, journalists, and lawyers.
In 2017, the Justice and Corporate Accountability Project (JCAP), a transnational, community-based legal clinic, submitted a report to the United Nations Working Group on Business and Human Rights. Their report focused on research from Latin America from 2000 to 2015 and identified the following:
incidents involving 28 Canadian companies;
44 deaths, 30 of which we classify as “targeted”;
403 injuries, 363 of which occurred in during protests and confrontations;
709 cases of “criminalization”, including legal complaints, arrests, detentions and charges; and
a widespread geographical distribution of documented violence.
Why do so many Canadian mining companies commit human rights violations with seemingly little in the way of repercussions? Historically, the Canadian government has been welcoming to multinational mining corporations with relaxed regulatory and taxation requirements and a reluctance to interfere in business affairs. As JCAP’s 2017 report puts it: “The government offices responsible for corporate social responsibility do not have the power to conduct investigations, nor sanction companies directly or compensate victims. Their only power is to recommend the withdrawal of Canadian government financial and embassy support.”
Canadian courts also historically have been reluctant to adjudicate cases of Canadian parent companies accused of human rights abuses abroad. One argument made is that these cases should be tried in the host country for jurisdictional reasons and to respect the sovereignty of those nations.
However, host countries are often unmotivated to pursue legal action against international mining corporations due to the economic benefit the corporations provide to host governments. And in instances where a host country intends to take action, they may also face difficulties imposing remedies on Canadian companies and their subcontractors for similar jurisdictional reasons.
Another frequent issue is that because Canadian parent companies often operate subsidiaries or subcontractors for work, including operating security forces, it has been difficult to prove that the Canadian parent company directly owes a duty of care. If you can’t prove that the parent company has a responsibility or obligation to avoid harmful acts or negligence, then they can’t be held liable.
In short, the Canadian government and judiciary's lack of ‘teeth’ in addressing human rights violations committed by Canadian corporations, at least in part, contributed to a sense of impunity for violations committed in countries they operate in and a disregard for international human rights obligations.
In recent years, Canadian courts have made some progress in addressing these gaps. The 2017 decision in Garcia v. Tahoe Resources Inc. provided an avenue for victims in host countries to use the Canadian legal system in instances where it is unlikely that the host country will be able to effectively hear the case or if the Canadian parent corporation is out of reach. Similarly, Choc v. Hudbay Minerals Inc (2013) created the potential for Canadian parent companies to be sued in Canada for acts committed by their subsidiaries abroad. Lastly, Nevsun Resources Ltd. v. Araya (2020) re-affirmed that international legal norms and standards, such as human rights protections, are presumed to be incorporated into Canadian law provided there is no legislation to the contrary.
Despite recent progress in the court system, there is still a lack of political will to hold corporations accountable, even to their own corporate social responsibility policies.
Corporations create corporate social responsibility (CSR) policies for a reason, perhaps because they care to some degree about how consumers perceive them, or perhaps to fill some other requirement. However, they also likely fear losing investors’ money or becoming uncompetitive in the market, and this contradiction can cause them to disregard their own CSR initiatives. Better enforcement mechanisms are needed, but options are limited by the desire of businesses to maximize profits.
A good starting place for Canada might be the creation of an oversight board to hold corporations accountable for human rights abuses committed abroad by the parent companies, subsidiaries, and subcontractors. However, many UN member countries face similar challenges. Globally, there needs to be a stronger link between corporate accountability and regulatory bodies.