Cory Wanless from Klippensteins law firm in Toronto will be one of the first lawyers in history to try a Canadian mining company in Canada for negligence at a foreign subsidiary.
“We’re proving that you can do it by doing,” he said about the precedent-setting cases against Hudbay Minerals Inc. The Guatemalan plaintiffs assert that the company’s negligence resulted in murder, paralysis and gang rape during forced evictions.
Outside of this important case, however, Canadians have had little opportunity to hear about mining disputes. There are few methods to address complaints about Canadian mining companies in Canada, outside of hiring a costly legal team which many foreign complainants can’t afford.
Ben Chalmers, spokesperson for the Mining Association of Canada (MAC), said that these concerns were what caused a revamp of the federal “Enhanced Corporate Social Responsible Strategy” for the extractive sector. The MAC consulted with the government about the restructured approach.
The new strategy was released in November of 2014 and combines the two Canadian bodies responsible for dealing with complaints.
The current Canadian framework for filing grievances against Canadian-owned mining subsidiaries consists of two main entities – the National Contact Point (NCP) and the Corporate Social Responsibility (CSR) Office. The NCP follows OECD guidelines and handles disagreements between mining companies and affected communities.
The OECD guidelines are an international set of voluntary guidelines that outline proper conduct for multi-national corporations in areas such as human rights, employee relations, and the environment.
The CSR office serves a similar conflict resolution role; however, the head position of CSR Counsellor hasn’t been filled since Marketa Evans resigned in October of 2013.
Wanless said that the CSR Office wouldn’t be able to deal with violent cases such as murder and gang rape, as it falls outside its mandate.
Chalmers acknowledged that government, industry and NGOs weren’t happy with how the old strategy was working. Greater coordination between the two offices was needed, he said, as well as a greater advisory role and earlier involvement with disputes. “It creates a better spectrum of dispute resolution,” he said.
Any findings or recommendations by the NCP or CSR office are not legally binding. There are no legal punishments for breaking the guidelines. However, the enhanced strategy does offer a penalty for companies that break the guidelines or refuse to participate in conflict resolution. The Canadian government will refuse to support or advocate for the offending company in foreign markets.
But Wanless said that these “soft-law mechanisms” prove that the current Canadian government doesn’t take complaints seriously. “It’s interested in little else than acting as a cheerleader for the mining industry,” he said.
NGOs such as MiningWatch Canada have also criticized the current framework. Jennifer Moore, a spokesperson for the NGO, has a dim view of the effectiveness of the strategy.
“The National Contact Point in Canada…chooses not to exercise its mandate in a very meaningful way,” she said. “In my experience they have actively sought any pretext to not pursue complaints.”
MiningWatch brought a complaint to the NCP about human rights abuses at an Ecuador mine in 2013. The case was dismissed by the NCP due to a lack of evidence, which the NGO denies. In a press release in October last year, MiningWatch said they “deplore the lack of will and failure to take action” on the part of the NCP.
The numbers seem to agree. According to the Canadian government, 50 per cent of the world’s mining companies were headquartered in Canada in 2013. However, only 12 cases have made it before the National Contact Point since 2002. These include accusations of failing to provide proper documentation of safety and environmental risks, forced displacement of communities, and company involvement in violent government repression of peaceful protests.
Chalmers has a different view of Canada’s role in navigating complaints of abuse.
He agreed that employees of Canadian mining subsidiaries should be punished if they break the law. However, that is the responsibility of that country, he said.
“Canada’s focus in this space should be on working to build governing capacity in host countries,” Chalmers said, meaning that justice and dispute resolutions for abuses should remain within the host country. He found the idea of Canada investigating abuses in other countries “colonial”.
However, Wanless said that in countries without the ability to administer justice properly due to corruption or lack of resources, punishment for wrongdoing is unlikely. According to a United Nations report, Guatemala has a 98 per cent impunity rate, meaning that only two out of 100 legal cases are resolved.
For Wanless, the new strategy is a “bad, safe attempt to silence critics without actually doing anything”.
The Canadian government declined to comment on this issue.