Canada: the mining companies’ paradise

Canada is a paradise for mining companies as well because it requires practically no accountability of them. This means that if a company commits human rights violations or other crimes abroad, it would have little to account for here in Canada.40 This impunity, added to the impunity that exists in Guatemala, means that Canadian mining companies can act without without fear of being sued, condemned or penalized for their actions.

However, the Canadian government has stated that it wants to comply with the guidelines regarding companies and human rights set out by the United Nations in 2011, which states that governments are responsible for ensuring that companies respect human rights, both in their own region and abroad.41

In response to the pressure exerted by groups fighting for the accountability of mining companies, in 2009 the Harper government created the position of Corporate Social Responsibility Counsellor for the extractive sector. The counsellor’s mandate was to help resolve disputes related to the behaviour of mining companies, but within the declared purpose of improving the competitiveness of the companies abroad.42 This initiative was highly criticized43 because it makes it seem as though the Canadian government is taking action, however, the counsellor has no real control to ensure that mining companies respect human rights. The counsellor also has no decision-making power. He or she can receive complaints from victims, but can only intervene if the company agrees to participate in the process. Finally, none of counsellor’s conclusions and recommendations are mandatory or binding.

Legally, opportunities for victims to obtain justice exist on paper, but in reality they prove to be very difficult to achieve. Canadian criminal law allows you to sue here, in Canada, a person or company that has committed a serious crime abroad.44 However, these types of proceedings cannot be initiated by the victims, but only by the government via the Attorney General. Therefore, this possibility rests greatly on the political will of the Canadian government, which tends to support the mining companies rather than require them to be accountable. With respect to civil law, it also allows non-Canadian victims to sue companies for human rights violations committed abroad provided that the ties between the crime and the company’s activities in Canada are clear. If such a tie is not strongly demonstrated, the ability of the Canadian court to rule on the matter will not be recognized and the proceedings will not take place. To date, victims of extraction in Guatemala have never resorted to Canadian civil law. The Canadian courts are reluctant to hear such disputes, and the mining companies question their competence in ruling on such matters. Bill C-354, whose purpose is to eliminate these barriers to Canadian justice, has been in the works for more than four years, but has yet to be passed.

Hope for justice in Canadian courts? For the first time, a crime committed by a mining company in Guatemala may be heard before a Canadian court. It is a lawsuit launched by Guatemalan citizens against Hudbay Minerals, a company registered in Toronto, whose private security forces are suspected to have committed murders and mass rapes. In July 2013, the Ontario Supreme Court agreed to hear the case. The case of Choc vs. Hudbay Minerals is a first, and perhaps shows a considerable step towards accountability of mining companies abroad… Stay tuned!45

  1. Quatorzième rapport du Comité permanent des affaires étrangères et du commerce international, 2005, Chambre des communes, 38ème législature 1 ère session, en ligne : http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1961949&Language=E&Mode=1&Parl=38&Ses=1 

  2. Assemblée générale des Nations-Unies, Conseil des droits de l’homme, Rapport du Représentant spécial du Secrétaire général chargé de la question des droits de l’homme et des sociétés transnationales et autres entreprises, John Ruggie, A/HRC/17/31, mars 2011. 

  3. Affaires étrangères et développement Canada, site web du bureau du Conseiller en responsabilité sociale des entreprises (RSE) de l’industrie extractive, en ligne : http://www.international.gc.ca/csr_counsellor-conseiller_rse/index.aspx?lang=fra 

  4. Mining Watch Canada, Concerns with regard to the mandate and review procedure of the Office of the Corporate Social Responsibility Counsellor for the Government of Canada, mars 2011, en ligne: http://www.miningwatch.ca/sites/www.miningwatch.ca/files/MiningWatch_Brief_on_CSR_Counsellor.pdf 

  5. Notamment la Loi sur les crimes contre l’humanité et les crimes de guerre, de même que la Loi sur la corruption d’agents publics étrangers. 

  6. Pour en savoir plus sur les poursuites judiciaires Choc versus Hudbay Minerals Inc et Caal versus Hudbay MInerals Inc, visiter le site : http://www.chocversushudbay.com/