Canada and Latin America - where is the accountability?

Published by MAC on 2013-11-02
Source: Ottawa Citizen, IPS

Op-Ed: Canada needs effective mining oversight

Catherine Coumans

Ottawa Citizen

31 October 2013

The Office of the Extractive Sector Corporate Social Responsibility Counsellor (CSR Counsellor) was announced with much government fanfare in October 2009 as a central "pillar" in the government's "CSR strategy" for Canada's extractive sector. The CSR Counsellor was to provide remedy for people who had been harmed by the overseas operations of Canadian extractive companies by mediating disputes.

On Oct. 18, CSR Counsellor Marketa Evans quietly resigned. No news release, no information about her departure on the official website of the office. In four years, she did not mediate any of the six cases brought before her, and none of the complainants received remedy.

For those who anticipated the failure of this office, Evans' departure is a welcome chance to shed light on the flaws of this mechanism and to create a more effective ombudsman's office.

MiningWatch Canada and others have been critical of the weak mandate of the Office of the CSR Counsellor and detailed its shortcomings. The CSR Counsellor is not mandated to investigate complaints or to report on whether or not a company has breached the standards set by the Government of Canada.

The one service Evans could offer those who had been harmed by the actions of a Canadian mining company, dispute mediation, was contingent on voluntary participation of the company in question. As predicted, companies made use of the voluntary nature of the office to walk away from offers of mediation with no consequences.

Of six complaints filed, three ended before they began when mining companies Excellon Resources, McEwen Mining and Silver Standard Resources turned their backs and walked out. Silver Standard's recent snub seems to have been the final straw for Evans.

One case remains open, another was recently closed as Evans claimed inability to establish communications with the indigenous Argentinian complainants.

These cases highlight the problem. Corporations hold all the power in this process. The mechanism puts complainants in the untenable position of having to rely on the very company that stands accused of having harmed them to decide if it is inclined to participate in mediation, to decide if it is interested in providing any form of remedy and, if so, the nature and size of the remedy it may choose to provide.

Moreover, fruitless participation in the CSR Counsellor's process further harms the weakest parties, the overseas workers and indigenous and community representatives who put themselves in the hands of this mechanism to seek redress. These people have, at best, wasted their time and limited resources. At worst they have exposed themselves to further harm at home for sticking their necks out.

A case in point is that of Mr. Lemine from Mauritania who brought forward community complaints about human rights and environmental abuses related to the operations of First Quantum Minerals. Having been convinced by the company that it had created a local grievance mechanism to which Mr. Lemine could turn, Evans sent him back home to the company's mechanism to try his luck there first. MiningWatch has followed up on this case and found that no effective local-level mechanism existed and Mr. Lemine is still seeking redress for the community for ongoing harm from the company's operations.

The Mining Association of Canada has appealed to the government to give the failed Office "more time" and "more money."

In an interesting twist of logic, Pierre Gratton, MAC's president and CEO, places blame for the Office's lack of effectiveness on "constant criticism" of its fundamental shortcomings. He downplays the most obvious factor in the Office's downfall, the failure of mining companies, including a MAC member, to participate: Excellon Resources was the first company to walk out on the CSR Counsellor's process. The company then joined MAC, but never took up the standing offer of the CSR Counsellor to come back to the table.

Just days after Evans' side-door departure, 23 member organizations of the Canadian Network on Corporate Accountability launched the network's "Open for Justice" campaign. The campaign calls for the establishment of an extractive-sector Ombudsman that is empowered to undertake independent investigations to determine if a company has breached guidelines and caused harm, and, if so, to make recommendations to the company and to the Canadian government in order to remedy the harm. The Ombudsman will make its findings public and could recommend the suspension of political, financial, and diplomatic support to a company by the Government of Canada.

An Ombudsman's office was first recommended by a joint industry-civil society report to the Government of Canada in 2007. Its key features were later incorporated in John McKay's narrowly defeated private member's bill C-300. It is high time for the Government of Canada to create a truly effective, independent, and mandatory extractive-sector Ombudsman.

Catherine Coumans is research co-ordinator and Asia Pacific program co-ordinator for Mining Watch Canada.

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South of the Border, Mining Is King

By Carey L. Biron

Inter Press Service (IPS)

1 November 2013

WASHINGTON - Civil society groups from throughout Latin America are urging "home countries" to take greater responsibility for the actions of their companies abroad, particularly those in the extractives industry.

"We would like to be able to influence policies that are being developed around the supply of minerals for various purposes - a lot of these policies are being framed as having to do with national defence, so there's practically a guarantee that these reserves must continue to be supplied," Pedro Landa, with the Honduran Centre for Collective Development, told IPS in Spanish.

"But that's making these companies more aggressive in our countries ... Oftentimes these companies are more powerful than the governments, and can simply buy off officials."

Several groups are currently in Washington to speak on the topic with U.S. lawmakers and to testify before the Inter-American Commission on Human Rights (IACHR), the primary rights forum of the 35-member Organisation of American States (OAS), which has its headquarters here.

The groups are warning that legal frameworks throughout Latin American countries have been overhauled in recent years such that, today, pro-business policies have made it extremely difficult for local communities to oppose mining proposals in their vicinities.

"Honduras is considered one of the most violent countries in the world, with a homicide rate of 86 per 100,000 residents, but this level of crime is very closely linked to the conditions in our country that also have to do with the extractive model," Landa told a briefing on Capitol Hill on Thursday.

"In countries like Honduras, where there is a lot of social upheaval, it's easy to pass laws that facilitate the extractive industries, especially mining. But these laws have been harmonised to be in concordance with the free trade agreements that our countries have signed ... while many of the proposals have been put forth or influenced by the transnational corporations themselves."

The United States in particular passed a slew of free trade agreements with Latin American countries during the 1990s, during the process of which the U.S. government mandated labour and trade concessions that, in the eyes of many, gave inordinate power to multinational mining companies. Landa says that the result today is a lack of adequate mechanisms by which local communities can oppose these industries - in any Latin American country.

In part because of trade agreements but also in part because of high global prices for minerals, Latin America has become a hotbed of extractives speculation in recent years. Simultaneously, local communities have seen their legal rights to oppose these projects curtailed.

"Since the 1990s in the region there's been an expansion of investment in the natural resource sector, as part of the globalisation process and part of the privatisation of state-owned industries, and also linked to the growing global power of China and other developing countries," Keith Slack, extractive industries global programme manager for Oxfam America, a humanitarian group and host of Thursday's briefing, told IPS.

"Quite directly related to this increased interest has come this increased level of conflict, protest and social disruption."

Much of this disruption is taking place in indigenous lands, compounding a broader issue in many countries where indigenous communities continue to struggle for agency and rights afforded other citizens. At the moment, most multinational companies do not appear to be adequately prepared for this complexity.

According to a new report released Wednesday by First Peoples, an advocacy group, just 5 of 52 U.S. companies surveyed had policies in place for "productively engaging" with indigenous communities. Indeed, some communities are feeling pressure from multiple companies interested in extraction projects.

"We're noticing a broad trend in which companies operating in close proximity acquire ‘spillover' risk from one another," Nick Pelosi, a grants assistant with First Peoples, told IPS, pointing to such a situation around Neuquen, in Argentina. "In such scenarios, the positive policies and practices of individual companies are overwhelmed by the cumulative negative impacts of all companies in the region."

New paradigm

Activists are now particularly focusing on trying to strengthen opportunities for local communities in Latin America and elsewhere to pursue judicial remedies for human rights violations in mining companies' home countries. On Friday, this "home state" responsibility will be discussed for the first time before the IACHR, and proponents suggest that it could offer a new paradigm within international law.

"The Inter-American system and the United Nations have been focused on the responsibility of host states, where these violations happen," Katya Salazar, executive director of the Due Process of Law Foundation, a Washington watchdog group, told the hearing on Thursday. "But we want to propose something new: it is not just the host states that have a responsibility in this regard, but also the home states, where these companies come from."

Today, some 60 percent of the foreign mining companies in Latin America are Canadian, and as such last year Salazar and others requested an IACHR hearing specifically on home state responsibility for Canada. Although that hearing was turned down, Salazar notes that Friday's more general hearing on the topic should be able to lead to a new discussion.

"Ten years ago we didn't discuss women's rights with the commission, while five years ago we didn't discuss indigenous rights - but now these are common topics," she told IPS.

"Similarly, today the discussion on the responsibility of home states is not yet a discussion at the commission. But the idea is that this hearing will open a window of new legal discussions within the Inter-American system."

The ability of local communities to use the U.S. legal system to seek redressal for rights violations received a significant setback earlier this year. In April, the U.S. Supreme Court refused to allow a group of Nigerian plaintiffs to sue the Royal Dutch Shell Petroleum Company in U.S. court, finding that Shell's connection to the United States was too tenuous.

Yet critics of the decision say that this is precisely the purpose for which the law in question - known as the Alien Tort Statute - was created.

"When Alien Tort claims are no longer effective in helping people to get responses to violations of their rights, what other tools exist?" Dora Lucy Arias, with the Jose Alvear Restrepo Lawyers Committee, a Colombian NGO, said Thursday, discussing some of the activists' lobby efforts on Capitol Hill.

"So I'm wondering if, from Congress, we may be able to think about some new and really effective mechanisms to make sure that the victims of these human rights violations have some recourse."