‘A NEW ERA’: BREAKTHROUGH CLAIMED IN EFFORTS TO MAKE CANADIAN-BASED MINING COMPANIES ACCOUNTABLE ON THEIR HOME TURF FOR HUMAN-RIGHTS VIOLATIONS THEY’RE ACCUSED OF ABROAD.
Cases of abuse in other countries dealt with here
A trio of civil cases winding through the courts signal a breakthrough in efforts to hold Canadian-based mining companies accountable on home turf when they’re accused of violations abroad, human rights and legal observers say.
Historically, Canadian judges have been inclined to send such cases back to the jurisdictions where the alleged abuses occurred. But the three pending cases — two in B.C. and one in Ontario — show the legal landscape is shifting.
“Courts are now willing to hear these cases,” says Penelope Simons, a law professor at the University of Ottawa. “They’re not trying to punt them back to other places. That’s an important thing.”
Last year, the Justice and Corporate Accountability Project at York University’s Osgoode Hall Law School linked 28 Canadian mining companies to 44 deaths, 403 injuries and 709 arrests, detentions and legal complaints in Latin America from 2000 through 2015. The alleged targets were often anti-mining demonstrators.
This past June, the United Nations Working Group on Business and Human Rights noted “cases of alleged human rights abuse by Canadian companies abroad … continue to be a cause for serious concern” and urged the federal government to do more to “set out clear expectations for Canadian companies operating overseas.”
Experts say increased exposure could be a reason Canadian courts seem more willing to take on these cases. Whatever the reason, the trend is welcomed by human rights watchers.
“It’s important that no company is above the rule of law,” said Amanda Ghahremani, legal director at the Canadian Centre for International Justice.
Vancouver-based Nevsun Resources is accused of being complicit in the use of conscripted military labour at a gold mine in Eritrea, one of Africa’s poorest nations.
One of the plaintiffs, former mine worker Gize Yebeyo Araya, said employees were made to work for a Nevsun subsidiary out in the open sun when temperatures soared as high as 47 C.
“I still have the scars from some of these burns on my face. Because of these conditions, and because of how little we were fed, I and many of my colleagues were always weak and exhausted,” he wrote.
Workers who disobeyed the rules or complained could be subject to a form of punishment called “helicopter,” in which their hands and feet were tied behind their backs and they would be left out in the sun, he alleged.
Nevsun, which denies the allegations, tried to argue the case should be heard in Eritrea. But a B.C. Supreme Court judge agreed with the plaintiffs that a “real risk” existed that the Eritrean legal system would not provide a fair trial. That decision was upheld last week by the B.C. Court of Appeal.
“In the legal world, this is very much a new development, which has real implications for developing international human rights law,” said lawyer Joe Fiorante, who represents the plaintiffs.
The other two pending cases — against Vancouverbased Tahoe Resources and Toronto-based Hudbay Minerals — involve alleged breaches of traditional Canadian tort law.
Plaintiffs allege security personnel at Tahoe’s mine in Guatemala opened fire on peaceful demonstrators in 2013 using rubber bullets.
A B.C. Supreme Court judge agreed with Tahoe that the case should be heard in Guatemala. But that decision was overturned by the B.C. Court of Appeal, which found there was “some measurable risk” the plaintiffs would not get a fair trial there.
The company tried to take the matter to the Supreme Court of Canada, but the top court refused to hear it. The company has not yet filed a statement of defence and has settled directly with some of the plaintiffs.
Meanwhile, Hudbay is facing three related lawsuits that allege the company was negligent in failing to prevent security personnel from carrying out acts of violence — a shooting, a murder and multiple gang-rapes — against members of the Indigenous Mayan Q’eqchi’ farming communities in eastern Guatemala, the site of a nickel-mining project.
Hudbay, which calls the allegations “untrue,” tried to argue a parent company could not be held legally responsible for harms caused by a subsidiary. But in an unprecedented decision in July 2013, an Ontario Superior Court judge said a parent company was not necessarily immune from liability.
“This is a new era in corporate accountability,” said Cory Wanless, co-counsel for the plaintiffs, adding pretrial questioning of witnesses is still ongoing.
Ben Chalmers, vice-president of sustainable development at the Canadian Mining Association, says the industry is watching the cases. The association has implemented mandatory measures to ensure members follow good practices, he said.
Critics say self-regulation doesn’t cut it and are pressing the Trudeau government to fulfil a campaign promise to appoint an ombudsperson to investigate grievances from people impacted by mining operations abroad.