Securities regulators turning a blind eye to lack of Indigenous consent around Canadian minesPublished by MAC on 2020-10-16
Mining companies failed to disclose key information about social issues at their mines
The Justice and Corporate Accountability Project (JCAP) has filed a number of complaints to the Ontario Securities Commission, the British Columbia Securities Commission and the United States Securities and Exchange Commission, relating to the failure of Canadian mining companies to disclose information on community conflict, violence and Indigenous consent.
An analysis of the cases found showed that the information disclosed in the complaints (but not disclosed by the companies) was important material information relating to the health of the company, including a drop in share price; divestment by institutional investors; and shareholder class action law suits against the company.
The study recommends that extractive companies should have more explicit guidance related to disclosure of violence and human rights issues, including specific disclosure requirements relating to free, prior, and informed consent of Indigenous peoples (FPIC).
This study is a follow-up to the JCAP report, “The Canada Brand: Violence and Canadian Mining Companies in Latin America” (2016), which found that publicly listed companies reported only 24.2% of the deaths and 12.3% of the injuries listed in that report.
15 September 2020
Between 2012 and 2019, the Justice and Corporate Accountability Project (JCAP) filed six complaints to securities regulators in Canada and the United States alleging that Canadian mining companies failed to disclose key information about conflict at their mines. The projects were in Mexico, Guatemala and Alaska. When JCAP made the information public, share prices dropped from 11%- 33% in a matter of days.
Four of the six complaints were about the same company, Tahoe Resources (TSX:THO; NYSE:TAHO). The reports were published between 2012 and 2019, covering the ongoing opposition to Tahoe’s mine by the community and the Xinca Indigenous people. Tahoe did not disclose this information to its shareholders. Instead, Tahoe executives boasted that the “people love us” even after Tahoe security guards shot farmers in the back as they fled a peaceful protest. The mine was shut down by the courts in Guatemala in 2017 because of the lack of consultation with Indigenous people.
• The JCAP report, “Empirical Data On How Investors Are Harmed When Companies Do Not Disclose Information About Violence and Lack of Indigenous Consent” has been submitted to the Independent Capital Markets Modernization Task Force (Ontario)
• The Task Force will provide advice to the Minister of Finance on how to modernize Ontario’s capital markets, including requirements for companies to disclose information about Environmental, Social and Governance factors
• The Justice and Corporate Accountability Project (justice-project.org) is a volunteer group based at Osgoode Hall Law School and Thompson Rivers Law School. The report was prepared by Shin Imai, Professor Emeritus, Osgoode Hall Law School and lawyer Sarah-Grace Ross
• “Securities regulators should explain why they are turning a blind eye to community conflict and lack of Indigenous consent,” said Shin Imai, Professor Emeritus at Osgoode Hall Law School. “In the case of Tahoe, we don’t even know if the British Columbia Securities Commission bothered to contact the company.”
• In a 2019 complaint against Northern Dynasty Minerals (TSX:NDM) about its Pebble project in Alaska, the stock fell 24.68% in the seven days following the release of the JCAP complaint
• A July 2012 complaint against Excellon Resources (TSX:EXN) for failure to disclose that the landowner was threatening to rescind access to the land, the stock fell 17% in one day, from $2.95 to $2.45. As of September 2020, it is trading at less than $1.00
• JCAP’s report recommends more explicit guidance for extractive companies to disclose violence and lack of Indigenous consent, and that securities regulators need to enforce disclosure requirements