Three civil cases ongoing in Canada involving human rights violations abroad mark a significant shift in the country’s legal landscape.
These cases are a breakthrough in holding Canadian mining companies accountable in Canada for violations done overseas, according to legal observers and human rights activists. Previously, Canadian judges mostly sent the cases back to jurisdictions where the alleged crimes took place.
Penelope Simons, a law professor with the University of Ottawa said that it was an important thing that Canadian courts are now willing to hear this case and “not trying to punt them back to other places .”
Industry bodies insist that that they have taken the necessary measures to ensure that their members are following environment and human rights laws while operating abroad. However several reports indicate that more is required to be done in Canada which is home to several major mining companies.
Canadian Companies Linked To Several Acts Of Violence
A study carried out last year by the Justice and Corporate Accountability Project at York University’s Osgoode Hall Law School showed that 28 Canadian mining companies could be linked to 44 deaths, 403 injuries plus 709 arrests or detentions in Latin America between 2000 and 2015.
The report also revealed that publicly traded companies disclosed a mere 24 percent of total fatalities and 12 per cent of the injuries in their company-specific performance reports.
According to industry experts, the increased exposure in recent times could be a reason for Canadian courts seeming to be more willing to take on these cases.
Human Rights Observers Welcome Change
Amanda Ghahremani, legal director at the Canadian Centre for International Justice pointed out that it was important that “no company is above the rule of law.”
Of the three cases, two are filed in British Columbia while the third one is in Ontario.
One of the lawsuits involves Nevsun Resources a Vancouver-based mining firm that is alleged to have been complicit using conscripted military labour at a gold mine in Eritrea, violating international law in place against slavery and torture.
A plaintiff, mine worker Gize Yebeyo Araya, alleges that he and his cowokers had to work for a Nevsun subsidiary directly under the sun with temperatures reaching upto 47 degrees. Workers disobeying the rules were given a form of punishment where their hands and feet were tied up behind their backs and then left in the sun. Yet another plaintiff and former worker, Mihretab Yemane Tekle, has stated that several workers caught serious illness including malaria.
The lawsuit argues that the company should have been aware that such violations are likely when it chose to partner with a “rogue” state.
Nevsun, denies the allegations, and recently argued that the case must be heard in Eritrea.
However a B.C. Supreme Court judge supported the plaintiffs who claimed that there was a “real risk” that the Eritrean legal system was not likely to provide a fair trial. This decision was upheld last week by the B.C. Court of Appeal.
If the case goes forward, it will be the first time that a Canadian court will be assessing if a breach of international law can result in a private claim for damages. The attorney representing the plaintiffs in the case Joe Fiorante said it was a new development with “real implications for developing international human rights law.”
Canadian Courts Changing Stance On Violations Abroad
The other two cases pending involve alleged breaching of Canadian tort law.
One is against Vancouver’s Tahoe Resources while the other is against the Toronto-based company Hudbay Minerals.
According to the plaintiffs in the Tahoe case, the company’s security personnel at its mine in Guatemala fired upon on peaceful demonstrators with rubber bullets in 2013 which caused it to be liable for damages in connection with “battery and negligence”.
A B.C. Supreme Court judge initially ruled in favour of Tahoe stating that the case must be heard in Guatemala. But the decision was overturned this year by the B.C. Court of Appeal, which found that there was “some measurable risk” that the plaintiffs would fail to get a fair trial in that country.
The company tried to get the case heard at the Supreme Court of Canada, but the top court refused to hear it. The company is yet to file a statement of defence and has chosen to settle with some of the plaintiffs directly.
Hudbay is the target of three lawsuits that claim that the company was negligent for not preventing security personnel from carrying out acts of violence including murder, shooting, and gang rapes against members of the Mayan Q’eqchi’ farming groups in eastern Guatemala.
Hudbay called the allegations “untrue” and has tried to defend itself by saying that a parent company was not legally responsible for the damages caused by a subsidiary. But in an unprecedented ruling, an Ontario Superior Court judge in July 2013 said a parent company wasn’t necessarily protected from liability.
Cory Wanless, co-counsel for the plaintiffs, said it was “a new era in corporate accountability”
Self Regulation In Place
Ben Chalmers, vice-president of sustainable development at the Canadian Mining Association, has said that the association has implemented several mandatory measures that seek to ensure that members “follow good practices”.
Companies are required to complete a yearly self-assessment on how well they’re engaging with communities and protecting the environment. External auditors verify these reports every three years. .
Far More Action Needed
However critics state that self-regulation isn’t enough. They are urging the federal government to follow in the footsteps of France, which recently passed a law that requires large multinational companies to release annual “due diligence” reports containing information on how the companies and their subsidiaries plan on safeguarding against environmental impacts or human rights abuses.
The activists are also pressurising the Trudeau government to make good a campaign promise to set up an ombudsperson for investigating grievances from people affected by Canadian mining operations overseas.
However the mining association has previously indicated that it would prefer to work on “joint fact-finding” model rather than the ombudsman working unilaterally.
A Global Affairs Canada spokeswoman has said that the government was in the process of consulting with various groups regarding the ombudsperson role and will be making an announcement shortly.