by Karen HendersonFenix Mine

Toronto-based mining company Hudbay Minerals is being sued for negligence stemming from an incident involving members of the El Estor community in Guatemala. This is the first time that a Canadian court will hear a case against a Canadian mining company for human rights abuses abroad.

Canadians do not have many opportunities to hear about mining disputes of this kind. There are few methods to address complaints about Canadian extractive companies in Canada, outside of hiring a costly legal team which many foreign complainants cannot afford.

Ben Chalmers, spokesperson for the Mining Association of Canada, said that these concerns were what caused a revamp of the “Enhanced Corporate Social Responsible Strategy” for the extractive sector. The revamp has ensured that issues are first handled by the Corporate Social Responsibility (CSR) office but if they cannot be resolved, they are then passed to the National Contact Point (NCP) office. The changes have now allowed the two offices to work in tandem. The strategy was released in November of 2014.

Chalmers said that the government, industry and the NGOs weren’t happy with how the old strategy was working. Greater coordination between the two offices was needed, he said, as well as a greater advisory role and earlier involvement with disputes. “It creates a better spectrum of dispute resolution,” he said.

The Corporate Social Responsibility office was led by CSR Counsellor Marketa Evans until her resignation in Oct. 2013. That position still remains vacant.

The current Canadian framework for complaints against Canadian-owned mining subsidiaries is limited to dispute resolution and mediation. NCP is an interdepartmental body which follows the Organisation for Economic Co-operation and Development (OECD) guidelines and handles disagreements between mining companies and affected communities.

The OECD guidelines are an international set of voluntary guidelines that outline proper conduct in areas such as human rights, employee relations, and the environment for multinational corporations.

Any findings or recommendations by the NCP are not legally binding. There are no penalties for breaking the guidelines.

Cory Wanless, solicitor for the Hudbay Minerals case, told the Leveller that these “soft-law mechanisms” prove that the current Canadian government doesn’t take complaints seriously. “It’s interested in little else than acting as a cheerleader for the mining industry.”

NGOs such as MiningWatch Canada have also criticized the current framework and have a dim view of the effectiveness of the strategy.

MiningWatch brought a case of human rights abuses at an Ecuador mine to the NCP in 2013, which was dismissed due to “unsubstantiated allegations.”  In an October 2014 press release , MiningWatch said it “deplore[s] the lack of will and failure to take action” on the part of the NCP.

Despite the fact that 75 per cent of the world’s mining companies are headquartered in Canada, only 12 cases have made it before the NCP since 2002. These include accusations of failing to provide proper documentation of safety and environmental risks, forced displacement of communities and company involvement in violent government repression of peaceful protests.

Chalmers agreed that employees of Canadian mining subsidiaries should be punished if they break the law. However, that is the responsibility of that country, he said.

“Canada’s focus in this space should be on working to build governing capacity in host countries,” Chalmers said, meaning that justice and dispute resolutions for abuses should remain within the host country. He found the idea of Canada investigating abuses in other countries “colonial.”

Wanless pointed out that in countries without the ability to administer justice properly, due to corruption or lack of resources, punishment for wrongdoing is unlikely. The United Nations’ International Commission against Impunity in Guatemala found that the country has a 98 per cent impunity rate, meaning that only two out of 100 legal cases are resolved.

For Wanless, the new strategy is a “bad, safe attempt to silence critics without actually doing anything”.

This article first appeared in the Leveller Vol.7, No. 5 (Feb/March 2015).