Major change is required to ensure accountability for companies that cause harm and effective remedy for those who are harmed, especially in the mining industry.
By: Alex Neve Published on Thu May 08 2014
The stories mount, stories of human rights abuse and injustice: “mining activists shot,” “mine operations suspended,” “company accused of water pollution.” Far too often a Canadian mining company is behind the story. Canadian mining companies lead the mining world; but none aspire to lead the world in mining-related human rights abuses.
There is a common theme to all the cases: lack of an effective remedy open to the individuals and communities that suffer human rights harms associated with Canadian mining operations. Victims have nowhere to turn for justice. Not in their home country, nor in Canada.
Over the last two decades, as Canadian companies dig in evermore far-flung corners of the world for gold and other precious metals, disturbing accusations of human rights abuses follow. Troubling allegations are currently before Ontario Superior Court involving the killing of a local activist and school teacher, the shooting of a young man and the gang-rapes of 11 women, each crime alleged to have been carried out by a Canadian company’s private security forces in Guatemala. Remarkably, the case has made it past the unfair procedural hurdles that usually keep cases of this sort from ever going to trial. It still remains to be seen whether justice will be served.
Amnesty International encourages businesses and governments to ensure that company operations – at home and abroad – promote strong human rights protection and do not lead to human rights abuse. Central to that effort, we recently published a new book, Injustice Incorporated: Advancing the Right to Remedy for Corporate Abuses of Human Rights. The book underscores the importance of ensuring that individuals or communities that have experienced human rights abuses associated with the operations of a company have access to an effective remedy for the harms they have endured.
Access to remedy is a fundamental component to the “protect, respect and remedy” framework laid out in the United Nations Guiding Principles on Business and Human Rights, adopted by the UN Human Rights Council in June 2011 and supported by Canada. Yet our book demonstrates that access to remedy remains elusive for most people, such as:
- The Omai gold in Guyana, where a tailings pond failed in August 1995, flooding a river with hazardous material and causing serious harm to the livelihoods of tens of thousands of residents.
- The Ok Tedi mine in Papua New Guinea, involving the failure of a mine waste containment system and the flooding of local rivers with harmful waste.
- The dumping of toxic waste originating from Europe in 18 communities in Côte d’Ivoire in 2006, which resulted in more than 100,000 people seeking medical treatment.
- The 1984 Bhopal gas leak in India, which resulted in the deaths of more than 20,000 people. More than 570,000 people, many of whom are still suffering, were exposed to damaging levels of toxic gas.
The cases demonstrate the length of time victims have been trying to seek an effective remedy, with only very limited success. The Omai Gold Mines class action lawsuit, first heard by the Quebec Superior Court, was referred back to Guyana in 1998 and despite two subsequent legal attempts, the full case has never been heard: each times it was dismissed on technical grounds.
Injustice Incorporated enumerates six key recommendations that governments should pursue in order to ensure the availability of effective remedies for corporate abuses of human rights. The recommendations encompass both legal reforms and changes to the behaviour of companies and governments.
Foremost, companies have a duty to care for the people affected by their operations and should be held responsible for human rights abuses that arise in their global operations. In order to reduce corporate influence on states, legislation is needed requiring politicians and civil servants to disclose all meetings with corporate actors, including informal meetings, and the issues discussed. Similarly, companies need to ensure rights holders have access to information about how company operations will affect them and disclose information critical for the effective enjoyment of their human rights.
Legal reforms are also required: the elimination of home state court use of the forum non conveniens doctrine (making it possible to hold parent companies responsible human rights abuses at their overseas projects); guidance to judges and prosecutors with respect to international cooperation to ensure effective remedy in corporate-related human rights abuses; and reform of civil procedures law on disclosure in cases of alleged corporate human rights abuses.
The matter is complex. The need for foreign direct investment leaves some developing countries relatively powerless to push for rights protections in their dealings with foreign companies. And in countries with high foreign debt or restrictive trade agreements, compliance with human rights obligations is even further out of reach. Canada must take steps to ensure that the political power wielded by Canadian companies overseas does not lead to human rights abuses and also does not prevent people from seeking and obtaining effective remedy for the harms they experience.
The changes needed in Canada involve a number of different government departments, including International Trade, Foreign Affairs, Industry Canada and Justice. It is a reform process that should be led by the Prime Minister.
In our globalized world, we can’t hide behind the idea that the harm is happening somewhere else and is someone else’s problem. Human rights abuses at some Canadian mines are happening now. Major changes are required to ensure accountability for companies that cause harm and effective remedy for people who have been harmed.
Governments bear responsibility for these needed changes. Businesses, including Canadian mining firms, need to get on board. The evidence shows that industry self-policing is simply not enough to prevent harm. By ensuring rights are upheld, accountability processes are predictable and transparent, legal processes and remedies are clear, and the lives of people living in communities where Canadian mines operate will be improved. It is in the interests of all.
Alex Neve is Secretary General of Amnesty International Canada.