MAC: Mines and Communities

Public Hearing on Canadian Government's failure to grant justice for mining-affected communities abroad

Published by MAC on 2014-10-23
Source: Statement (2014-10-28)

The report mentioned below can be downloaded from:- Human Rights, Indigenous Rights and Canada's Extraterritorial Obligations

The hearing is available online in its entirety: http://www.youtube.com/watch?v=OWYue8FP9ZY&feature=youtu.be

Previous article on MAC: Canada and Latin America - where is the accountability?

Washington, D.C. hearing to spotlight the Canadian Government's failure to prevent harm and ensure justice for mining-affected communities abroad

Joint press release

23 October 2014

(Ottawa) The Canadian Government has failed to respond to a decade's worth of recommendations to prevent and provide effective recourse for harms related to Canadian mining operations in Latin America and the Caribbean, according to a report by the Canadian Network on Corporate Accountability that will be presented in a public hearing before the Inter American Commission on Human Rights (IACHR) in Washington, D.C. on Tuesday, October 28th.

MiningWatch Canada, Osgoode Hall's Justice and Corporate Accountability Project (JCAP) and the Canadian Centre for International Justice (CCIJ) will make presentations at the hearing. The Commission has requested the presence of the State of Canada, but it is not clear if they will participate.

According to documented evidence, systematic abuses have been taking place against Indigenous and non-Indigenous communities, workers and the environment involving Canadian companies operating in Latin America and the Caribbean with strong support from the Canadian government. The report calls on the Canadian government to take measures to help prevent further harm, including to stop directing overseas development aid and diplomatic services toward the promotion of large-scale mineral extraction overseas. Further, to enact legislation such that Crown corporations, particularly those that finance and hold equity in companies, comply with international Indigenous and human rights obligations. The report also underscores the need for legally binding standards and effective recourse to address the negative impacts that mining is having on communities, workers and the environment because voluntary standards and other existing measures fall short.

This hearing is part of the 153rd Period of Sessions of the Inter American Commission on Human Rights (IACHR). The IACHR is a regional human rights body and an autonomous organ of the Organization of American States. It holds hearings twice a year, in the fall and in the spring.

In October 2013, the IACHR heard from the Working Group on Mining and Human Rights in Latin America about systematic Indigenous and human rights violations against mining-affected communities. The Working Group profiled 22 case studies involving Canadian companies with strong support from the Canadian state and observed a troubling pattern of abuses.

This hearing comes on the heels of the defeat of Ombudsman Bill (Bill C-584) in the Canadian House of Commons. Tabled by Quebec MP Eve Péclet, the bill called for the creation of an independent extractive sector ombudsman with power to investigate and make recommendations regarding the human rights impact of Canadian mining companies operating abroad. 

WHAT: IACHR Hearing:Impact of Canadian Mining Activities on Human Rights in Latin America

WHO: Representatives from MiningWatch Canada, Osgoode Hall's Justice and Corporate Accountability Project (JCAP) and the Canadian Centre for International Justice (CCIJ) will make presentations. The Commission has requested the presence of the State of Canada, but it is not clear if they will participate.

WHEN & WHERE: Tuesday, October 28 from 10:45am to 11:45am in the Ruben Dario Room (Eighth Floor), Inter American Commission on Human Rights (1889 F St. N.W., Washington D.C.). The event will likely be videotaped and livestreamed for which available links will be provided prior to the hearing.

Contacts:

Download the report - Human Rights, Indigenous Rights and Canada's Extraterritorial Obligations


Washington, D.C. hearing spotlights the Canadian government’s failure to prevent harm and ensure justice for mining-affected communities abroad

Joint press release

28 October 2014

(Ottawa/Washington) The Canadian government is failing to meet its international obligations to prevent and to provide recourse for harms related to Canadian mining operations in Latin America and the Caribbean, according to a new report by the Canadian Network on Corporate Accountability (CNCA) presented today to the Inter-American Commission on Human Rights (IACHR) in Washington D.C.

“Canada has a very strong presence in the globalized mining industry with almost 1,500 projects in the region, and we’re aware of a great deal of conflict,” said Shin Imai, lawyer with the Justice and Corporate Accountability Project (JCAP), who presented before the Commission. “Our preliminary count shows that at least 50 people have been killed and some 300 wounded in connection with mining conflicts involving Canadian companies in recent years, for which there has been little to no accountability.”

“Despite the abuses and growing number of communities saying no to large scale mining in defense of their lands and wellbeing, the Canadian government staunchly and irresponsibly defends Canadian companies through embassies, development aid and numerous other means,” remarked Jen Moore from MiningWatch Canada, who also spoke today.

For more than a decade, UN experts and treaty bodies have echoed calls from civil society groups in the CNCA and internationally that the Canadian government assume its obligations to respect Indigenous and human rights. Canada has been urged to take measures to prevent harm and to provide access to justice for communities affected by Canadian extractive companies’ operations abroad.

Contacts:

Background

Formed in 2005, the Canadian Network on Corporate Accountability (CNCA) brings together 29 human rights, environmental, labour, religious and social justice organizations that are advocating for law reform in Canada to hold Canadian companies and the Canadian state accountable for human rights and environmental harms committed abroad.

Today’s report calls for the adoption of two law reforms identified in the CNCA’s ‘Open for Justice’ campaign: legislated access to Canadian courts for those who have been harmed by Canadian mining companies abroad; and an independent ombudsman office to investigate complaints and recommend remedial action where necessary.

The report also calls on the Canadian government to take measures to prevent further harm including, among others, an end to the practice of directing overseas development aid and diplomatic services toward the promotion of large-scale mineral extraction overseas.

Last year, civil society groups from Latin America presented a report to the IACHR about systematic Indigenous and human rights violations against mining-affected communities. They profiled 22 case studies involving Canadian companies that receive support from the Canadian state and observed a troubling pattern of abuse.

A copy of the CNCA report is available here: http://cnca-rcrce.ca/wp-content/uploads/canada_mining_cidh_oct_28_2014_final.pdf


‘Cracks’ in Canadian Policy for Overseas Mining, Evidence of an Abyss

By Jennifer Moore

Rabble

30 October 2014

“Despite Canada’s assurances that there is good policy, we continue at the commission to see a number of very, very serious human rights violations occurring in the region,” said Commissioner Rose-Marie Antoine for the Inter American Human Rights Commission (IACHR) in Washington this week.
 
Aluding to complaints the IACHR has received about serious harms to the lives, lands, water, health, living environments and livelihoods of mining-affected communities in connection with the operations of Canadian mining operations in Latin America and the Caribbean, she continued, “You have policies like the CSR [strategy], but we see the cracks in the policy at the other end of it, […] the human face.”
 
Antoine’s comments came in response to representatives of Canada’s Permanent Mission to the Organization of American States (OAS) who presented at a hearing: “Canada: Impact of Canadian mining companies in Latin America.” Canada tried to defend its Corporate Social Responsibility (CSR) Strategy for the overseas mining sector, falsely stating that it was developed based upon broad consultation with civil society and other sectors, and emphasizing that “Canada prefers voluntary mechanisms.”  
 
Antoine was not sold, however: “On one hand, I heard you say we promote human rights. But it’s a hands-off approach [when there are harms]: [Canada] takes no responsibility and this has everything to do with the other state.” She urged Canada to stop taking such a narrow, legalistic approach to defining the scope of its responsibility, if it really cares about human rights and wants to be a leader.   
 
Presentations from MiningWatch Canada, the Justice and Corporate Accountability Project (JCAP) at Osgoode Hall Law School, and the Canadian Centre for International Justice (CCIJ) demonstrate that the cracks observed by the IACHR are in fact indicative of a gaping abyss for mining-affected communities who seek redress for mining abuses and who are calling for solidarity with their struggles, increasingly, to protect lands and water supplies before mining starts. 
 
Professor Shin Imai from JCAP outlined how not one of the many CSR instruments that the Canadian government purports to encourage Canadian companies to adopt provides any means for affected communities to obtain redress for damages done. The lengthy CSR reports that some mining companies produce neither prevent harm nor deal with serious abuses arising, they literally paper over the issues, he said.
 
Bluntly put, he concluded: “Profits do not respect borders. We’re getting profits in Canada, but when human rights violations [occur], it’s their problem, not our problem.” We would never think of regulating highway traffic on the honour system, he argued, so why would we think this is appropriate for such a highly destructive mining industry?
 
Matt Eisenbrandt, Legal Director at CCIJ, observed that the only vehicle available for redress in Canada is through civil lawsuits. He relayed optimism about potential outcomes of current lawsuits in Ontario against HudBay Minerals and in BC against Tahoe Resources for negligence in connection with violent crimes at mine sites in Guatemala. Further, he noted, these claims incorporate alleged violations of the companies’ own CSR commitments. Nonetheless, he added, such cases are lengthy and only a few law firms in Canada are willing to assume the risks they entail, not least of all because many have a conflict of interest, given that they have mining industry clients.  
 
MiningWatch stressed that the problem goes beyond lack of redress and that Canada must prevent harms from ocurring in the first place. This is fully within Canada’s power to do: one need merely contrast the Canadian state’s hands-off approach in terms of harms done with its very hands-on manner of enabling and defending the interests of Canadian mining companies through thick and thin, despite the industry’s short term interests and long term impacts on affected communities.
 
One example, now well-documented, pertains to the Canadian Embassy in Mexico and its efforts to first enable and then defend Blackfire Exploration’s conflict-ridden barite mine in Chiapas. There are many more examples and bound to multiply, particularly now that the Canadian government has made it policy to channel 100% of its diplomatic corps to back private interests, something it calls ‘economic diplomacy’. And this is just one of the ways that the Canadian state supports Canadian mining companies, even when communities and workers bring complaints and when there are serious questions regarding the legitimacy, legality and compatibility of their operations and this extractive model with the rights of Indigenous and non-Indigenous communities in the region.
 
Ultimately, the hearing raised more questions for the IACHR than it answered, in particular because the Canadian state delegation opted not to use its final five minutes for rebuttal, preferring to submit a detailed reply in writing at a later date.
 
We await the opportunity to scrutinize their response and look forward to reviewing the IACHR’s recommendations for addressesing the extraterritorial obligations of states of origin of transnational corporations in its forthcoming report on natural resources and Indigenous peoples. 


 

Canada Accused of Failing to Prevent Overseas Mining Abuses

By Carey L. Biron

InterPress Service (IPS)

31 October 2014

WASHINGTON  - The Canadian government is failing either to investigate or to hold the country’s massive extractives sector accountable for rights abuses committed in Latin American countries, according to petitioners who testified here Tuesday before an international tribunal.

The Inter-American Commission on Human Rights (IACHR) also heard concerns that the Canadian government is not making the country’s legal system available to victims of these abuses.

“Far too often, extractive companies have double-standards in how they behave at home versus abroad.” -- Alex Blair of Oxfam America

“Canada has been committed to a voluntary framework of corporate social responsibility, but this does not provide any remedy for people who have been harmed by Canadian mining operations,” Jen Moore, the coordinator of the Latin America programme at MiningWatch Canada, a watchdog group, told IPS.

“We’re looking for access to the courts but also for the Canadian state to take preventive measures to avoid these problems in the first place – for instance, an independent office that would have the power to investigate allegations of abuse in other countries.”

Moore and others who testified before the commission formally submitted a report detailing the concerns of almost 30 NGOs. Civil society groups have been pushing the Canadian government to ensure greater accountability for this activity for years, Moore says, and that work has been buttressed by similar recommendations from both a parliamentary commission, in 2005, and the United Nations.

“Nothing new has taken place over the past decade … The Canadian government has refused to implement the recommendations,” Moore says.

“The state’s response to date has been to firmly reinforce this voluntary framework that doesn’t work – and that’s what we heard from them again during this hearing. There was no substantial response to the fact that there are all sorts of cases falling through the cracks.”

Canada, which has one of the largest mining sectors in the world, is estimated to have some 1,500 projects in Latin America – more than 40 percent of the mining companies operating in the region. According to the new report, and these overseas operations receive “a high degree” of active support from the Canadian government.

“We’re aware of a great deal of conflict,” Shin Imai, a lawyer with the Justice and Corporate Accountability Project, a Canadian civil society initiative, said Tuesday. “Our preliminary count shows that at least 50 people have been killed and some 300 wounded in connection with mining conflicts involving Canadian companies in recent years, for which there has been little to no accountability.”

These allegations include deaths, injuries, rapes and other abuses attributed to security personnel working for Canadian mining companies. They also include policy-related problems related to long-term environmental damage, illegal community displacement and subverting democratic processes.

Home state accountability

The Washington-based IACHR, a part of the 35-member Organisation of American States (OAS), is one of the world’s oldest multilateral rights bodies, and has looked at concerns around Canadian mining in Latin America before.

Yet this week’s hearing marked the first time the commission has waded into the highly contentious issue of “home state” accountability – that is, whether companies can be prosecuted at home for their actions abroad.

“This hearing was cutting-edge. Although the IACHR has been one of the most important allies of human rights violations’ victims in Latin America, it’s a little bit prudent when it faces new topics or new legal challenges,” Katya Salazar, executive director of the Due Process of Law Foundation, a Washington-based legal advocacy group, told IPS.

“And talking about the responsibility for the home country of corporations working in Latin America is a very new challenge. So we’re very happy to see how the commission’s understanding and concern about these topics have evolved.”
Home state accountability has become progressively more vexed as industries and supply chains have quickly globalised. Today, companies based in rich countries, with relatively stronger legal systems, are increasingly operating in developing countries, often under weaker regulatory regimes.

The extractives sector has been a key example of this, and over the past two decades it has experienced one of the highest levels of conflict with local communities of any industry. For advocates, part of the problem is a current vagueness around the issue of the “extraterritorial” reach of domestic law.

“Far too often, extractive companies have double-standards in how they behave at home versus abroad,” Alex Blair, a press officer with the extractives programme at Oxfam America, a humanitarian and advocacy group, told IPS. “They think they can take advantage of weaknesses in local laws, oversight and institutions to operate however they want in developing countries.”

Blair notes a growing trend of local and indigenous communities going abroad to hold foreign companies accountable. Yet these efforts remain extraordinarily complex and costly, even as legal avenues in many Western countries continue to be constricted.

Transcending the legalistic

At this week’s hearing, the Canadian government maintained that it was on firm legal ground, stating that it has “one of the world’s strongest legal and regulatory frameworks towards its extractives industries”.

In 2009, Canada formulated a voluntary corporate responsibility strategy for the country’s international extractives sector. The country also has two non-judicial mechanisms that can hear grievances arising from overseas extractives projects, though neither of these can investigate allegations, issue rulings or impose punitive measures.

These actions notwithstanding, the Canadian response to the petitioners concerns was to argue that local grievances should be heard in local court and that, in most cases, Canada is not legally obligated to pursue accountability for companies’ activities overseas.

“With respect to these corporations’ activities outside Canada, the fact of their incorporation within Canada is clearly not a sufficient connection to Canada to engage Canada’s obligations under the American Declaration,” Dana Cryderman, Canada’s alternate permanent representative to the OAS, told the commission, referring to the American Declaration of the Rights and Duties of Man, the document that underpins the IACHR’s work.

Cryderman continued: “[H]ost countries in Latin America offer domestic legal and regulatory avenues through which the claims being referenced by the requesters can and should be addressed.”

Yet this rationale clearly frustrated some of the IACHR’s commissioners, including the body’s current president, Rose-Marie Antoine.

“Despite the assurances of Canada there’s good policy, we at the commission continue to see a number of very, very serious human rights violations occurring in the region as a result of certain countries, and Canada being one of the main ones … so we’re seeing the deficiencies of those policies,” Antoine said following the Canadian delegation’s presentation.

“On the one hand, Canada says, ‘Yes, we are responsible and wish to promote human rights.’ But on the other hand, it’s a hands-off approach … We have to move beyond the legalistic if we’re really concerned about human rights.”

Antoine noted the commission was currently working on a report on the impact of natural resources extraction on indigenous communities. She announced, for the first time, that the report would include a chapter on what she referred to as the “very ticklish issue of extraterritoriality”.

Edited by Kitty Stapp


Do no harm, Canada

By Jennifer Moore

http://rabble.ca/blogs/bloggers/miningwatch/2014/11/do-no-harm-canada

14 November 2014

The Inter American Human Rights Commission -- an independent office of the Organization of American States -- has added its voice to a growing list of human rights bodies calling on Canada to prevent mining abuses and hold Canadian companies and state agencies responsible to account.

In a statement released summarizing dozens of hearings heard in late October, the Commission specifically urged Canada -- as home to hundreds of mining companies with mining projects throughout Latin America and the Caribbean -- to "prevent the multiple human rights violations that can result" from their advancement (emphasis ours). Without naming any other country, it extended this same demand to "host" states in which companies operate, and other home states of transnational corporations.

The Commission cited having heard "cases of violations of the right to life, forced displacement, instances in which water and food sources have been cut off, and violence against leaders opposed to development projects, among other problems." It also heard about negative impacts on "Indigenous peoples' rights over their lands and territories, as well as on the rights of communities of African descent and rural and peasant populations," including where "Indigenous peoples live in voluntary isolation and initial contact, as well as about other projects implemented in areas inhabited by Indigenous peoples in contact but where their rights to prior, free, and informed consultation have not been respected." (The fact that the Commission stopped short of asserting Indigenous peoples' right to free, prior, informed consent is unfortunate and must have made the Canadian representatives to the OAS feel a little bit better given the government's shameless campaign against this right. Also see here.)

In our own presentation to the Commission on October 28, we highlighted how the Canadian state itself is implicated in grave Indigenous and human rights violations through its own acts and omissions, given the myriad of ways that it aggressively promotes and protects mining company interests from Mexico to Argentina, in the most deadly of circumstances and in the face of determined community resistance.

We highlighted the case of the Canadian Embassy in Mexico, which played a central role to enable and then defend Blackfire Exploration's mine in Chiapas, even after community leader Mariano Abarca was murdered, after it came to light that the company had been making direct payments to the local mayor in order to repress protests, and after the mine was shuttered on environmental grounds.

Given the Canadian state's activist role on behalf of the rapacious interests of our bloated mining industry, which regularly leads to serious and lasting harm in communities throughout the region, it is important that the Commission singled out Canada and talked about prevention, not just reparation. While justice is urgently required for the many harms that have already occurred, we need to stop them before they start.

To begin, this means putting respect for Indigenous and collective as well as individual human rights in first place, including respect for those communities -- even entire populations -- saying no to mining. It also means instituting mandatory corporate and state accountability standards that provide accessible processes, independent fact finding and remedies for harms taking place.

Going further, it's time to stop directing overseas development aid and diplomatic services toward the promotion of large-scale mineral extraction overseas given the systematic harm it is causing; to ensure Crown corporations that provide financing or holding equity in companies have to comply with international human rights obligations; and to end Canada's aggressive promotion of investor protection agreements that, among other things, let them sue governments when they or their courts make decisions intended to protect people and the environment.

More broadly, it is time to seriously question this extractivist economic model that the Canadian state apparatus has been harnessed to promote and advance in many countries, as many communities in the region are doing, questioning its legitimacy, legality and compatibility with their rights and well-being.

UN bodies that have previously called on the Canadian state to prevent mining abuses and to hold Canadian-registered companies to account:

To see the hearing at the Commission about the impacts of Canadian mining companies in Latin America see http://www.youtube.com/watch?v=OWYue8FP9ZY&feature=youtu.be.

To read the report submitted from the Canadian Network for Corporate Accountability to the Commission see Human Rights, Indigenous Rights and Canada's Extraterritorial Obligations

 

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