Canadian Bill Will Perpetuate Immunity

RIGHTS ACTION Commentary
October 20, 2009
BILL C-300 WILL PERPETUATE EFFECTIVE IMMUNITY FROM LEGAL RECOURSE IN CANADA
BILL C-300 - NOT THE LEGAL REFORMS NEEDED
NEITHER FOR REAL LEGAL ACCOUNTABLITY FOR GLOBAL MINING COMPANIES, NOR FOR THE RIGHTS & NEEDS OF MINING HARMED COMMUNITIES IN EXPLOITED COUNTRIES OF THE GLOBAL SOUTH (“DEVELOPING COUNTRIES”)
Rights Action has prepared these comments concerning Bill C-300 in Canada, pending legislation that purports to provide corporate accountability for activities related to mining, oil and gas extraction in so-called “developing” countries (often more aptly called “exploited” countries).
Rights Action has considered Bill C-300 with friends and partner groups in North America and particularly with friends and partner organizations in mining affected communities of Honduras and Guatemala.
We comment on Bill C-300 from the perspective of the rule of law (does Bill C-300 provide binding and enforceable criminal and civil law, or not?) and from the perspective of the global “development” model and the actual health and environmental harms and rights violations being experienced by mining affected people and communities in countries like Guatemala and Honduras.
THE 2005 STANDING COMMITTEE
In 2005, the Canadian Parliamentary Standing Committee on Foreign Affairs and International Trade (SCFAIT) acknowledged, in its 14th report, that Canadian mining companies were operating with immunity from legal accountability and effective impunity, stating that:
"Canada does not yet have laws to ensure that the activities of Canadian mining companies in developing countries conform to human rights standards, including the rights of workers and indigenous peoples”.
The Standing Committee recommended that Canada:
"Establish clear legal norms in Canada to ensure that Canadian companies and residents are held accountable when there is evidence of environmental and/or human rights violations associated with the activities of Canadian mining companies."
Bill C-300, if passed into law, cannot and will not provide effective civil and criminal law remedies and enforceable sanctions for harms and violations, and it will further entrench an unjust “development” model.
BILL C-300
We set out here the actual Bill C-300, with some comments interspersed in the text.
BILL C-300, Second Session, Fortieth Parliament, 57-58 Elizabeth II, 2009
HOUSE OF COMMONS OF CANADA, BILL C-300: An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries
FIRST READING, FEBRUARY 9, 2009, MR. MCKAY, 402168
SUMMARY - The purpose of this enactment is to promote environmental best practices and to ensure the protection and promotion of international human rights standards in respect of the mining, oil or gas activities of Canadian corporations in developing countries. It also gives the Minister of Foreign Affairs and Minister of International Trade the responsibility to issue guidelines that articulate corporate accountability standards for mining, oil or gas activities and it requires the Ministers to submit an annual report to both Houses of Parliament on the provisions and operation of this Act. (Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca)
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
1. This Act may be cited as the Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act.
INTERPRETATION
2. (1) The following definitions apply in this Act.
“corporation” - “corporation” includes any company or legal person incorporated by or under an Act of Parliament or of any province.
“developing countries” - “developing countries” means countries and territories named in the list of countries and territories eligible for Canadian development assistance established by the Minister of International Cooperation.
“gas” - “gas” has the same meaning as in section 2 of the Canada Oil and Gas Operations Act.
“IFC” - “IFC” means the International Finance Corporation affiliated with the World Bank Group.
“international human rights standards” - “international human rights standards” means standards that are based on international human rights conventions to which Canada is a party and on international customary law.
“mineral resources” - “mineral resources” means all naturally occurring minerals, but does not include peat, petroleum, natural gas, bitumen, oil shales, limestone, marble, clay, gypsum, earth, ash, marl, gravel, sand or any element that forms part of the agricultural surface of the land.
“mining, oil or gas activities” - “mining, oil or gas activities” means the exploration and drilling for, and the production, conservation, processing or transportation of, mineral resources, oil or gas in the territory of a developing country or on the high seas where such activities are controlled directly or indirectly by a Canadian corporation.
“oil” - “oil” has the same meaning as in section 2 of the Canada Oil and Gas Operations Act.
“Voluntary Principles on Security and Human Rights” - “Voluntary Principles on Security and Human Rights” means the set of principles announced in December 2000 by the governments of the United States and the United Kingdom to guide companies in maintaining the safety and security of their activities within an operating framework that ensures respect for human rights and fundamental freedoms.
Meaning of “Ministers” and “either Minister”
(2) Where the word “Ministers” is used in this Act, it refers to both the Minister of Foreign Affairs and the Minister of International Trade, and where the expression “Minister” or “either Minister” is used in this Act, it refers to either the Minister of Foreign Affairs or the Minister of International Trade.
PURPOSE
3. The purpose of this Act is to ensure that corporations engaged in mining, oil or gas activities, and receiving support from the Government of Canada, act in a manner consistent with international environmental best practices and with Canada’s commitments to international human rights standards.
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[RIGHTS ACTION: In the main “purpose” of Bill C-300, it is stated that the law will apply to corporations “receiving support from the Government of Canada”. From the get go, the main “purpose” of Bill C-300 eliminates the policies and activities of a majority of Canadian mining, oil and gas corporations from being covered by this Bill, as they do not receive support from the Canadian government.]
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POWERS AND FUNCTIONS
Complaints
4. (1) In carrying out their responsibilities and powers under this Act, the Ministers shall receive complaints regarding Canadian companies engaged in mining, oil or gas activities from any Canadian citizen or permanent resident or any resident or citizen of a developing country in which such activities have occurred or are occurring.
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[RIGHTS ACTION: From the get go, Bill C-300 keeps the entire process of holding corporations accountable (that minority of corporations that actually receive support from the Canadian government) out of our legal system (and the application of binding criminal and civil law that would, if a determination of guilt or responsibility is made, provide for and enforce remedies and for appropriated criminal and/or civil law sanctions and/or punishments). Instead, Bill C-300 places “corporate accountability” in the hands of an administrative process controlled by “the Ministers”. This undermines the rule of law, and represents a double-standard: Corporations operating in Canada are subject to the rule of law and the application of criminal and civil law sanctions … as complicated and daunting as bringing real legal challenges are in the Canadian legal system.]
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Content of a complaint
(2) The complaint shall be in writing, shall identify the provisions of section 5 alleged to have been contravened, and shall set out reasonable grounds for the belief that a contravention has occurred.
Frivolous or vexatious complaint
(3) If the Minister who receives the complaint determines that the request is frivolous or vexatious or is made in bad faith, he or she may decline to examine the matter. Otherwise, he or she shall examine the matter described in the complaint and assess compliance with the guidelines set out in section 5.
Information to consider
(4) In conducting an examination, the Minister who receives the complaint may consider information from the corporation or from the public, including evidence from witnesses outside of Canada.
Own initiative
(5) If the Ministers have reason to believe that a company has contravened a guideline set out in section 5, they may examine the matter on their own initiative.
Publication of results
(6) The Ministers shall publish in the Canada Gazette the results of any examination undertaken pursuant to this section within eight months following receipt of the complaint.
Publication
(7) If a complaint is determined to be frivolous or vexatious or made in bad faith as provided for in subsection (3), the Minister shall provide reasons for this determination and publish these reasons in the Canada Gazette.
Notification
(8) The Ministers shall notify the President of Export Development Canada and the Chairperson of the Canada Pension Plan Investment Board where they determine that a corporation’s mining, oil or gas activities are inconsistent with the guidelines set out in section 5.
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[RIGHTS ACTION: This is, perhaps, the only point of interest in Bill C-300. If/when “the Ministers” (using the weak, administrative investigation process) determine that a corporation’s activities contravene guidelines in section 5, they will “notify” Export Development Canada and the Chairperson of the Canada Pension Plan Investment Board. Though few corporations get support from Export Development Canada, the Canada Pension Plan is indeed invested in many mining, oil or gas corporations.]
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Notification
(9) The Ministers shall notify the Governor in Council of any inconsistency with the guidelines set out in section 5 that has or may give rise to a grave breach of international peace and security or international human rights within the meaning of section 4 of the Special Economic Measures Act.
Information and advice
(10) The Ministers may prepare, compile, publish and distribute information on mining, oil or gas activities and on international human rights standards and provide advice to Canadian corporations concerning the latter.
GUIDELINES
Issuance of guidelines
5. (1) Within 12 months of the coming into force of this Act, the Ministers shall issue guidelines that articulate corporate accountability standards for mining, oil or gas activities.
Content of guidelines
(2) The guidelines shall incorporate:
(a) the IFC's Policy on Social & Environmental Sustainability, Performance Standards on Social & Environmental Sustainability, Guidance Notes to those standards, and Environmental, Health and Safety General Guidelines;
(b) the Voluntary Principles on Security and Human Rights;
(c) human rights provisions that ensure corporations operate in a manner that is consistent with international human rights standards; and
(d) any other standard consistent with international human rights standards.
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[RIGHTS ACTION: Bill C-300 includes a list of non-binding, voluntary compliance guidelines. The problem with this list is not the content, per se, but that they provide no criminal or civil law enforceability or sanction mechanism. Like Bill C-300, they undermine the rule of law.]
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Consultation
(3) In carrying out their duties under subsection (1), the Ministers shall offer to consult with government departments or agencies, representatives of the mining, oil and gas industries, non-governmental organizations, and other interested persons in or outside Canada as they may see fit.
Notice
(4) Guidelines issued under this section shall be made available to the public, and the Ministers shall give notice of them in the Canada Gazette and in any other manner that the Ministers consider appropriate.
REVIEW AND REPORT
Annual report
6. (1) Within three years after the coming into force of this Act and each year thereafter, the Ministers shall cause to be laid before both Houses of Parliament a report on the provisions and operation of this Act, including any recommendations for amendments to this Act.
Review of report
(2) A committee of the House of Commons as may be designated or established by the House of Commons for that purpose shall review the report and submit a report on the review to the House of Commons within 60 days.
Review of the Act
7. (1) Five years after the coming into force of this Act, a review of the operation of this Act shall be undertaken by such committee of the House of Commons as may be designated or established by the House for that purpose.
Report
(2) The committee referred to in subsection 6(2) shall, within one year after a review is undertaken pursuant to that subsection or within such further time as the House of Commons may authorize, submit a report on the review to the House of Commons.
CONSEQUENTIAL AMENDMENTS
R.S., c. E-20; 2001, c. 33, s. 2(F)
EXPORT DEVELOPMENT ACT
8. The Export Development Act is amended by adding the following after section 10.1:
Mining, oil or gas activities
10.2 (1) In the exercise of its powers under subsection 10(1.1), the Corporation shall not enter into, continue or renew a transaction related to mining, oil or gas activities, as that term is defined in the Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act, unless these activities are consistent with the guidelines issued under section 5 of that Act.
Continued compliance
(2) Continued compliance with the guidelines issued under section 5 of the Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act shall be a condition in any contract entered into by the Corporation related to mining, oil or gas activities within the meaning of that Act.
R.S., c. E-22; 1995, c.5, s.2
DEPARTMENT OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE ACT
9. Section 10 of the Department of Foreign Affairs and International Trade Act is amended by adding the following after subsection (3):
Mining, oil or gas activities
(4) In carrying out his or her duties and functions under paragraphs 2(d) and (e) and 3(a) that relate to mining, oil or gas activities, as that term is defined in the Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act, the Minister shall ensure that these activities are consistent with the guidelines issued under section 5 of that Act.
Undertaking
(5) For greater certainty, with the exception of ordinary consular services available to all Canadian citizens, no undertaking made through a program developed by the Minister in the exercise of his or her powers under this section shall promote or support mining, oil or gas activities, as that term is defined in the Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act, that are inconsistent with the guidelines issued under section 5 of that Act.
1997, c. 40
CANADA PENSION PLAN INVESTMENT BOARD ACT
10. Section 36 of the Canada Pension Plan Investment Board Act is renumbered as subsection 36(1) and is amended by adding the following:
Consideration
(2) In taking into consideration the standards and procedures that a person of ordinary prudence would exercise, every investment manager who invests the assets of the Board shall take into consideration the provisions of section 5 of the Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act.
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[RIGHTS ACTION: This section provides “reform” without teeth. All any Canada Pension Plan Investment Board fund manager has to do is “take into consideration” the provisions of the, as already stated, weak law. There are no binding guidelines as to what types of mining, oil and gas corporate activities they can or cannot invest in.]
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Inconsistent activities
(3) Every investment manager who invests the assets of the Board shall ensure that the assets are not invested in any corporations whose activities have been found by either Minister, as that term is defined in the Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act, to be inconsistent with the guidelines referred to in section 5 of the Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act.
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[RIGHTS ACTION: This section is slightly stronger. If and only if “the Ministers” arrive, someday, at an administrative finding that the activities of a certain corporation are inconsistent with the guidelines …, then the CPP cannot invest in those activities of that corporation. Though this sections sounds like it has some ‘teeth’, it is premised on the entire weak process centered around “the Ministers”, not around a binding civil and/ or criminal law process. Moreover, were the CPP to withdraw its investments from a particular corporation, which might be of some symbolic value, there is nothing that prevents the corporation in question from continuing with its activities and, as stated, there are no criminal or civil laws that alleged victims can use to seek remedy.]
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1992, c. 17
SPECIAL ECONOMIC MEASURES ACT
11. Subsection 4(1) of the Special Economic Measures Act is replaced by the following:
Orders and regulations
4. (1) The Governor in Council may make such orders and regulations with respect to the restriction or prohibition of any of the activities referred to subsection (2) in relation to a foreign state
(a) where the Governor in Council deems it necessary for the purpose of implementing a decision, resolution or recommendation of an international organization, of which Canada is a member, that calls on its members to take economic measures against a foreign state;
(b) where the Governor in Council is of the opinion that a grave breach of international peace and security has occurred that has resulted, or is likely to result, in a serious international crisis; and
(c) where the Governor in Council is of the opinion that grave breaches of human rights have occurred in the foreign state and continue or are likely to continue.
For greater certainty
For greater certainty, “grave breaches of human rights” means “crime against humanity”, “genocide” or “war crime” as defined in the Crimes Against Humanity and War Crimes Act.
COMING INTO FORCE
12. This Act comes into force 30 days after the day on which it receives royal assent.
Published under authority of the Speaker of the House of Commons
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GLOBAL IMMUNITY AND IMPUNITY
Rights Action does not make these comments about Bill C-300 lightly or to engage in casual polemics. As acknowledged by the Standing Committee in 2005, no criminal or civil legal framework exists in Canada to hold mining companies responsible for their practices abroad (when such activities contribute directly or indirectly to environmental and health harms and other human rights violations).
This state of immunity and impunity does not mean, however, that we should support a Bill that essentially reinforces the state of immunity from legal recourse in Canada. We are calling for laws to be put in place that would provide for clear legal recourse for peoples and communities whose livelihood and rights and have harmed and violated. (On request, Rights Action can provide extensive information about mining-related harms and violations in campesino and campesino-indigenous communities in Honduras and Guatemala.)
At a bare minimum, indigenous-campesinos and campesinos in mining affected communities want real and enforceable legal accountability (including remedies and sanction) for the multiple abuses and violations committed by mining companies. But mostly, in community after community – campesino and campesino-indigenous – the people want the companies to leave. For these people, in need of a sustainable and healthy development model, the passing of Bill C-300 will further entrench an unquestioned, unacknowledged, unjust “development” model.
With respect to civil law reform, NDP MP Peter Julian, on April 1, 2009, re-introduced a private member’s bill:
“The International Promotion and Protection of Human Rights Act (IPPHRA) will hold violators accountable for gross human rights abuses regardless of where they take place. The IPPHRA would allow lawsuits in Canada for a host of universal human rights violations such as genocide and torture. In addition, it would prohibit activity that significantly degrades the environment or violates key international labour rights. The United States has had similar legislation that grants its courts the authority to enforce international law since 1789.” (http://www.ndp.ca/press/new-democrat-bill-ensures-corporate-accountability-for-canadian-firms-operating-abroad)
Rights Action has not studied this bill in detail, but mentions it here to contrast it with the entire focus of Bill C-300 that keeps the monitoring of corporate activities out of the courts, in administrative processes controlled by “the Ministers” - that provide no sanctions against the wrong-doers and no remedies for the victims of harms and violations.
With respect to reforming Canada’s criminal code, so that corporations and their directors could be brought to trial for criminal actions in their corporate activities in “developing countries”, no one in Canada has taken up this challenge.
Immunity from legal accountability in Canada remains the state of affairs for Canadian corporations that carry out mining activities around the world that often result in environmental and health harms and human rights violations.
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WHAT TO DO
Please redistribute this information all around.
To get on-off our list-serv: www.rightsaction.org
For more information about Rights Action work in general, and specifically with respect to mining affected communities in Honduras and Guatemala, contact Grahame Russell: info@rightsaction.org, www.rightsaction.org
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