Permanent Peoples' Tribunal: Verdict on the Canadian Mining Industry in Latin America

Published by MAC on 2014-06-03
Source: Tppcanada.org, Vice, The McGill Daily

Permanent Peoples' Tribunal: Session on the Canadian Mining Industry in Latin America

May 30 - Jun 1, 2014

Preliminary Verdict (Excerpt)

http://www.tppcanada.org/

Montreal, Québec - This document is part of the preliminary verdict that was presented by the Permanent Peoples' Tribunal (PPT) jury on Sunday, June 1, 2014. The definitive and more detailed final version will be available soon.

The preliminary verdict was presented by the members of the PPT jury: Maude Barlow (Council of Canadians), Mireille Fanon-Mendès-France (Frantz- Fanon Foundation, France), Nicole Kirouac (Malartic Supervisory Committee, Québec), Gérald Larose (Université du Québec à Montréal), Viviane Michel (Quebec Native Women), Javier Mujica Petit (Centre for Public Policy and Human Rights, Peru), Antoni Pigrau Solé (Rovira i Virgili University, Spain), Gianni Tognoni (Permanent Peoples' Tribunal, Italy)

--

The Permanent Peoples' Tribunal (PPT) has gathered together to judge Canadian mining companies that are accused of threatening the fundamental human rights of peoples in Latin America; and to consider allegations against the Canadian state for having contributed, through act and omission, to human rights violations of peoples in Latin America through its support for the mining industry and by favouring these companies in a context of impunity.

With regard to the impacts of Canadian mining companies to the access, enjoyment and exercise of human rights on nations and peoples in which they have invested and are operating, the PPT identifies several levels of responsibility:

First, the expert panel finds the companies responsible for having failed in their obligsalations to respect, protect and ensure human rights, according to international human rights law. Second, the Canadian state and Latin American states are also responsible for the continued violation of human rights. In both cases, states have failed in their obligation to protect human rights, to prevent and sanction violations, particularly those related to Canadian mining companies.

The lack of fulfillment of this obligation leads to responsibility by act and omission. In the case of the Canadian state, it is responsible through its actions when it stimulates the presence of Canadian mining companies in other countries through political, economic, financial and diplomatic support; when it tolerates or covers up human rights violations that companies are perpetrating; or when it denies access to effective mechanisms to protect victims from these violations.

The Canadian state is responsible by omission when it abstains from adopting measures, or from requiring that Canadian mining companies undertake measures to prevent or remedy human rights violations. This is a responsibility that cannot be avoided, considering that some 50 to 70% of mining activities in Latin America are undertaken by Canadian mining companies, and that many of these projects are the source of serious socio-environmental conflicts and human rights threats. Overall, as is well known, this is taking place because these are large scale projects frequently undertaken without respect for the right of self-determination of affected peoples and for the right of people to define for themselves their ways of life and their future. As a result, Canadian mining companies's operations entail serious impacts on the life of communities, generating tension, mistrust, divisions and conflicts.

In the case of the host states in which Canadian mining companies are invested, their responsibility is related to granting licences to operate and exploit mineral resources without consideration for the impacts that these activities have on human rights; when these authorities grant licenses for extractive industry activities without prior consultation and/or free, prior and informed consent of the communities and indigenous populations that will be affected by these operations; when they fail to set requirements to ensure these companies respect human rights; when they loosen labour, environmental and tax laws to favour the interests of mining companies; and when they tolerate or collaborate in these activities at the expense of the communities in which they operate.

They are also responsible when - arbitrarily undermining the democratic and social foundation of a democratic state - they directly criminalize the activities of individuals, activists, community leaders or human rights and environmental defenders who are legitimately and peacefully defending peoples' right to self-determination and opposing violations of human rights and fundamental freedoms. Social movements (frequently indigenous) are frequently stigmatized and criminalized for organizing in defense of and to protect the territories of mining-affected communities and the right to a healthy environment, the protection of nature, ecosystems, livelihoods, water, cultural heritage and the right to decide the type of development that they desire.

States are responsible by omission when, as in the case of the Canadian state, they fail to take measures or to demand that Canadian mining companies adopt measures to prevent violations and/or to remediate violations that occur during their operations in the area of human rights and the environment.

The Permanent Peoples' Tribunal heard the testimony of numerous victims, in addition to specialists and experts, enabling an understanding of the practices of Canadian mining companies, as well as the Canadian state and host states in which these companies are investing, which are taking place with disregard for human and social values of all kinds, and not infrequently, for life itself.

The cases examined by the Tribunal demonstrate relevant human rights violations and the Tribunal considers that it has been shown - based on the documentation and the testimonies presented - that the Canadian mining companies based in Mexico, Honduras, Guatemala and Chile, whose behaviour has been examined during this session, have committed multiple human rights violations, as outlined in the original allegations, which can be grouped into three areas:

First, violation of the right to life, an adequate quality of life, nutrition, water, health, housing, the freedom and integrity of persons, security and a healthy and safe environment. Second, the jury considers that it has been demonstrated that these companies, according to the allegations made, have also violated the right of peoples to self-determination and, in accord with this right, their right to land and territories in which they live and in which the resources on which they depend are located. The jury further considers that it has been demonstrated that the companies have violated the right to participation and to prior consultation and free, prior and informed consent of the communities, as well as to their own vision of development and the full exercise of their own culture and traditions. The Tribunal considers that the violations of the right of these communities to a full citizenship that includes the right to human dignity, education, work, just and equitable work conditions, as well as labour rights that include the right to free association and collective negotiations of their working conditions have been further demonstrated. The Tribunal also considers that unionized companies have violated the right to freedom of expression, association, peaceful gatherings, access to information, participation and the right to effective, simple and efficient mechanisms that would guard against human rights violations. Additionally, the Tribunal considers that the companies have violated the right of persons and affected communities to not be discriminated against in any way and to defend their human rights.

The Permanent Peoples' Tribunal finds that Canadian mining expansion in Latin America would not have been possible without the promotion and direct involvement of the Canadian state to uphold the mining industry through diverse political activities and government programs. Canadian state intervention has taken various forms. First, through political support and meddling in the legislative processes of host states. For example, through inappropriate interference in the reforms of mining and environmental legislation, diplomatic lobbying, support for companies' social projects and negotiating investment agreements that protect Canadian investments abroad.

Second, the Canadian state has also provided economic and financial support channeled through the Export Development Corporation and the Canadian Pension Fund Investment Board. It has also failed to ensure transparency in the regulation of the Canadian stock exchanges, installed favourable tax regimes, and supported trade missions, among other initiatives.

Finally, the Canadian state has also imposed or tolerated barriers to justice in Canada for individuals and communities affected by the activities of Canadian mining companies.

The international promotion of Canadian trade and investment cannot ignore the supremacy of human rights as established in international law; and, least of all allow that favourable conditions for the promotion of private interests be established at the expense of human rights in Canada, Latin America or anywhere else.

Based on these considerations, the Permanent Peoples' Tribunal declares that the following companies are responsible for human rights violations as described in this summary: Barrick Gold and its subsidiary Nevada Spa Mining, Goldcorp and its subsidiary Entre Mares, Tahoe Resources and its subsidiary Minera San Rafael S.A., Blackfire Exploration and its subsidiary Blackfire Exploration México S.A. de C.V. and Excellon Resources Inc. and its subsidiary Excellon de México S.A. de C.V. The Canadian state and the countries in which these companies are operating are also at fault for not having prevented and for having facilitated, tolerated or covered up these human rights violations, as well as for having impeded in practice access to adequate mechanisms that would protect the victims from these violations.

---

Canadian Pensions are Being Invested in a Mining Company with a Questionable Human Rights Record

By Tim McSorely

http://www.vice.com/en_ca/read/canadian-pensions-are-being-invested-in-a-mining-company-with-a-questionable-human-rights-record

22 May 2014

Sixteen year old Merilyn Topacio Reynoso Pacheco and her father Edwin Alexander Reynoso were both shot on April 3, 2014 by unknown assailants. Topacio died of her wounds, and in mid-May her father was still recovering in hospital. Both have been active and vocal critics of Tahoe's Escobal mine located near their community of Mataquescuintla in southeastern Guatemala. Tahoe is a mining company that was founded in Vancouver, and trades on the Toronto Stock Exchange.

The murder of Topacio and the shooting of her father are the latest acts of violence around a mining project that critics in Guatemala and Canada say has failed to gain a "social license" from locals, and that its continued operation will only lead to more conflict. Concerns about the mine are primarily environmental, with fears that water contamination will affect agricultural production and local water sources. Just as central is that despite the concerns, the government ignored over 250 complaints before approving the mine. In an appeal of one rejected complaint, a judge ruled that the government did not follow regulations and that the complaint should have been investigated before a license was granted. That case is still winding its way through appeal. Opposition, though, has continued.

Over the past three years, referenda against the mine have passed by large majorities in the various communities around the mine, with tens of thousands voting against Tahoe's operations. In Mataquescuintla itself, 96 percent voted against the mining project. The latest referendum, in the neighbouring municipality of Jalapa in November 2013, voted 98 percent against the mine. However, the local municipal government where the mine is found, San Rafael de Las Flores, has so far refused to hold a public referendum.

To make matters worse, local indigenous leaders have also have been kidnapped and threatened for their opposition to the mine, gun shots have been fired outside the offices of anti-mining community organizations, and peaceful blockades have been violently ejected by police. While these actions have not been linked directly to Tahoe, the mine's security forces have also used violent force against peaceful protesters. Escobal's former head of security is currently on trialfor assault, causing bodily harm, and obstructing an investigation for his role in the shooting of six non-violent anti-mining protesters in April 2013, while he was still working for the mine.

Watchdogs and human rights organizations in Canada like Amnesty International, Breaking the Silence and MiningWatch, along with partner organizations in Guatemala, have been calling for greater accountability and repercussions for Tahoe, saying the company is simply ignoring the conflict in the pursuit of profit.

While Tahoe declined an interview with VICE, in an email response they said that they maintain good relationships with the communities in proximity to their mine. "We have great local support, with 96 percent of our total workforce Guatemalan and most from our local area," wrote Ira M. Gostin, vice-president investor relations with Tahoe.

"It's simply not true that the company has strong community support," said Jen Moore, Latin America Program Coordinator with MiningWatch Canada in an interview with VICE, pointing to the local referenda. She said she finds it "disturbing" that a company like Tahoe, which is a spin-off of veteran Canadian gold-mining company GoldCorp that operates in several Latin American countries, wouldn't recognize the degree of community opposition and the tension and violence that it has led to.

"These [mining] companies' actions raise the stake significantly in these areas," Moore said, adding that even if they have not been found directly responsible for the violence, they have a responsibility to try and find a solution. "We have called for a full and complete investigation into these and other murders," he said. "The company should be calling for the same."

While MiningWatch and others have been trying to pressure the Guatemalan government and Tahoe itself to address these concerns, they recently turned their sights on the millions of Canadian taxpayer dollars invested in the company.

On May 8, 2014, MiningWatch issued an open letter to the Canadian Pension Plan Investment Board (CPPIB), calling on the Crown corporation to divest the $26 million of public funds it has sunk into Tahoe-an amount that has tripled over the last three years, as tension around the mine has grown.

MiningWatch argues that as a crown corporation managing public funds, they have a responsibility to invest ethically and not fund a project like the Escobal mine that has led to violence, and will likely cause more. Beyond the moral argument, they also say that the community conflict presents a risk to the CPPIB's investment, as it could hurt Tahoe's bottom-line. As an example, following Canadian mining company Hudbay Minerals Inc. being brought to court in Canada for negligence over the alleged attacks and gang rapes of 11 women in 2007, allegedly committed by members of their security force, the police, and the military, the company sold their mine for $176 million-half what it paid for the mine three years earlier.

So, should Canada's manager of our pension money be held to a stricter account than other investment funds? For their part, the CPPIB says their hands are tied: based on their founding legislation from 1997, they are not allowed to consider any "non-investment objectives" when making decisions of where to place Canadians' retirement money.

"However," wrote Linda Sims, the CPPIB's director of media relations, "as long-term investors we believe that organizations that manage ESG [environmental, sustainable and governance] factors effectively are more likely to create sustainable value over the long term, than those that do not. We also believe that we have a responsibility as long-term investors to conduct ourselves as principled, constructive and active owners."

While Sims said the CPPIB does not believe it is helpful or constructive to speak about the engagement with specific companies, she did point to their efforts to work closely with companies to improve their community relations and environmental records. In their 2013 Report on Responsible Investing, for example, the CPPIB is currently focusing on extractive industries in particular, working with company executives to increase transparency around community relations, human rights issues, and environmental concerns.

Moore sees investing millions in a company when human rights concerns are already apparent and then pressuring them afterwards as a "naïve" approach. "It's part and parcel of the lack of accountability [for crown corporations like the CPPIB]," she said. "I don't see any leverage for the CPPIB in talking nicely with Tahoe."

Balancing return on investment and ethical choices can be difficult, said Deb Abbey, CEO of the Responsible Investment Association, a non-profit that works to promote the use of ESG criteria among Canada's investment companies.

"While engagement is an effective process, at some point, an investment manager must assess whether the company is effectively managing risk," she told VICE by email. "Clearly companies that are involved in risky behaviours abroad are not... There is no trade off between human rights abuses and good returns."

Until there is an impact on the bottom-line, though, Canadians' money may be staying with Tahoe. This past summer, the CPPIB dropped its shares in Excellon Resources, a Toronto-based company with a controversial gold mine in Durango state, Mexico. The mine was so controversial that community conflict (and the drop in silver prices) caused the company's stock price to drop to the point where the CPPIB pulled their funding. While the CPPIB has said the decision was simply based on stock price, critics of Excellon said that without sustained opposition to the mine, the CPPIB may never have had a reason to divest.

MiningWatch and their partners plan to continue to publicly speak out and pressure the CPPIB to divest from the company. At the end of the day, it isn't so much about how much money the CPPIB has in Tahoe resources-Moore admits that a CPPIB divestment wouldn't have that big an impact on Tahoe's cash flow-but about sending a clear message that companies like Tahoe cannot continue to ignore the impact of their mines without consequence.

"This is a company that very much knows what it is doing. This company [as a spin-off of GoldCorp] knows Guatemala," Moore said. Community organizers in Guatemala have told her that the degree of violence and criminalization of mining opponents has been much worse here than at other controversial Guatemalan mines. "It's only going to get worse."

---

International opinion tribunal condemns Canadian mining companies

Witnesses testify to systematic human rights violations in Latin America

Written by Igor Sadikov

The McGill Daily

6 June 2014

The first hearing of the Permanent Peoples' Tribunal's (PPT) session on the Canadian mining industry took place in Montreal last weekend. In a preliminary verdict, delivered on June 1, an international jury found Canadian mining companies operating in Latin America responsible for having failed to respect and ensure human rights in their operations, in contravention of international human rights law. The jury also found the Canadian state and Latin American states responsible for the continued violation of human rights.

The PPT is an independent international opinion tribunal mandated to examine human rights violations, particularly in cases where national and international justice systems have proved ineffective. The session on the Canadian mining industry was prompted by the fact that 75 per cent of the world's mining companies are registered in Canada, whose "laws, tax structure and foreign policy [are] all very favourable to extractive industries," according to the PPT's website.

"I think processes like this tribunal are very important, because unfortunately the court systems that we have available to us here in Canada, at the international level, or in the countries where [the companies operate] do not work to hold [companies] accountable," said Rachel Small, a student at York University who attended the hearing and works for the Mining Injustice Solidarity Network, in an interview with The Daily.

Socio-environmental impact

Meeting at the Comité d'éducation aux adultes de la Petite-Bourgogne et Saint-Henri over a two-day period, expert witnesses and members of communities affected by the Canadian mining industry in Latin America testified before an audience of about 100.

On the first day, the testimonies related to the socio-environmental impact of the mining activity itself, while the second day focused on Canadian policies contributing to the violation of human rights and environmental damage abroad.

"I think it's very, very important that we have people's mechanisms that take back justice [...] to make sure that voices can be heard that are never going to be heard in traditional justice systems."

Several Canadian mining companies were charged with large-scale, systematic violation of human rights along three axes: the right to life and to a healthy environment, the right to self-determination, and the right to full citizenship.

Nadja Palomo, a prosecuting lawyer for the case against Canadian mining companies, cited two instances of mining operations in Honduras and Chile by Canadian companies Goldcorp and Barrick Gold - meant to be representative of the industry - that have led to the contamination of water sources, limited access to water, and health problems for local communities. "[The] risks aren't always immediately visible, but [mining activities] have disastrous, and often irreversible, consequences for the environment, as well as for the health and life even of generations to come," Palomo told the audience in French.

Prosecutor Paul Cliche noted that mining activities often take place without the free, prior, and informed consent of the communities affected. He cited the case of a mining project in Guatemala, which began in spite of a legal challenge being in progress and of several municipal referenda showing overwhelming opposition to the project.

Lina Solano Ortiz, sociologist and founder of the Ecuadorian women's organisation Frente de Mujeres Defensoras de la Pachamama, explained that mining operations negatively affect women, who are left to do unpaid caregiving.

"Often the men have to relocate, they move away from their families [and] their communities, and those who remain in charge of all the productive work are the women," Solano Ortiz explained in Spanish in her testimony. "The moment a mining company arrives, there is contamination, there are health problems [...] and [by caring for the sick children and the sick miners, the women are doing work for free for the very same corporations that have made their families and themselves sick, and in this manner they are exploited by mining [industry] capital."

Complicity of the Canadian state in violations

Maude Chalvin, founding member of the Projet Accompagnement Solidarité Colombie, and Pedro Landa, coordinator at the Centro Hondureño de Promoción al Desarrollo Comunitario, described the Canadian state's interference with the legislative process in Colombia and Honduras.

In both countries, the Canadian International Development Agency has provided technical or financial support to the development of a new mining code that lessened restrictions on exploitation of mineral resources, according to the evidence provided by the prosecution. The legal changes have strengthened Canadian investment in both countries, to the extent that the Colombian auditor general used the term "Canadian colonization" in his 2013 report, according to Chalvin.

Stephen Brown, professor of political science at the University of Ottawa, condemned what he called the "re-commercialization of development aid."

"For about a decade, we've been celebrating certain victories, such as the elimination of ‘tied aid,' which means that Canadian aid is no longer tied to the purchase of goods and services from Canada," Brown said in French in his testimony as an expert witness. "But it's been reintroduced through the back door, and we now celebrate the benefits [of foreign development aid] for Canadians, and especially for Canadian private companies."

One of his examples was a "corporate social responsibility" project put in place in Peru by Barrick Gold and funded by the Canadian Ministry of Foreign Affairs, Trade and Development, which, Brown argued, aimed to gain the approval of the community for unpopular mining projects, and thus to benefit the Canadian extractive industry.

"It's an inappropriate, nay, illegal, use of public development aid," said Brown.

Moving forward

In the coming weeks, the jury will make concrete recommendations to the relevant companies, governments, and organizations. The final verdict will also be sent to the Inter-American Commission on Human Rights and to the United Nations.

"The testimonial evidence we've heard, I found that it was of a very high quality [...]," juror Nicole Kerouac, a retired lawyer now doing pro-bono work on mining, told The Daily in French. "It gives an image of the behaviour of the Canadian mining companies in South America that can be quite accurate, I think, and I find that disturbing."

The second hearing of the session on the Canadian mining industry will touch upon its effects within Canada, with particular focus on Indigenous communities, according to PPT co-spokesperson Daniel Cayley-Daoust. The session, the fortieth of the PPT since its inception in 1979, is expected to continue until 2016.

"[A process like the Tribunal is] extremely effective at documenting cases, at putting things together, and creating a broader analysis in a big-picture context," Cayley-Daoust told The Daily. "As well, I think it's useful for political pressure. A lot of these recommendations will be able to be used and referred to in the future, again by other groups [... the Tribunal will be impactful] if people take parts of this and use it in their own work."

"I think it's very, very important that we have people's mechanisms that take back justice [...] to make sure that voices can be heard that are never going to be heard in traditional justice systems," added Small. "So I think the fact that this tribunal is not official according to the laws of Canada is actually what makes it so powerful and so effective, because it's a way that people can take back the ‘just-ish' system to really promote real justice."

-With files from Jill Bachelder