November 27, 2017 – ‘New era’: Canadian mining industry closely watching three civil cases alleging human rights abuses —

The following article appeared in the National Post on November 27, 2017. Visit the original article here.

A trio of civil cases winding through the courts signal a breakthrough in efforts to hold Canadian-based mining companies accountable on home turf when they’re accused of violations abroad, human rights and legal observers say.

Historically, Canadian judges have been inclined to send such cases back to the jurisdictions where the alleged abuses occurred. But the three pending cases — two in British Columbia and one in Ontario — show that the legal landscape is shifting.

“Courts are now willing to hear these cases,” says Penelope Simons, a law professor at the University of Ottawa. “They’re not trying to punt them back to other places. That’s an important thing.”

Industry groups say they have taken steps to make sure members don’t run afoul of human rights and environmental laws when operating abroad. But several reports in recent years suggest more needs to be done in Canada, which is home to over half of the world’s mining companies reportedly worth $170 billion.

Last year, the Justice and Corporate Accountability Project at York University’s Osgoode Hall Law School

linked 28 Canadian mining companies to 44 deaths, 403 injuries and 709 arrests, detentions and legal complaints in Latin America from 2000 through 2015. The alleged targets were often anti-mining demonstrators.

The report also found that publicly listed companies disclosed only 24 per cent of the fatalities and 12 per cent of the injuries in their company-performance reports.

This past June, the United Nations Working Group on Business and Human Rights noted that “cases of alleged human rights abuse by Canadian companies abroad … continue to be a cause for serious concern” and urged the federal government to do more to “set out clear expectations for Canadian companies operating overseas.”

Experts say increased exposure of the problem could be a reason why Canadian courts seem more willing now to take on these cases. Whatever the reason, the trend is welcomed by human rights watchers.
A 2013 company photograph of operations at Nevsun Resources’ mine in Bisha, Eritrea. Nevsun Resources

“It’s important that no company is above the rule of law,” said Amanda Ghahremani, legal director at the Canadian Centre for International Justice.

In one lawsuit, Vancouver-based Nevsun Resources is accused of being complicit in the use of conscripted military labour at a gold mine in Eritrea, one of Africa’s poorest nations, in violation of international law norms against slavery and torture.

One of the plaintiffs, former mine worker Gize Yebeyo Araya, said he and others employed by an Eritrean civil works subcontractor were made to work out in the open sun when temperatures soared as high as 47 degrees at a mine owned and operated by Bisha Mining, an indirect subsidiary of Nevsun.

“I still have the scars from some of these burns on my face. Because of these conditions, and because of how little we were fed, I and many of my colleagues were always weak and exhausted,” he wrote.

Workers who disobeyed the rules or complained could be subject to a form of punishment called “helicopter,” in which their hands and feet were tied behind their backs and they would be left out in the sun, he alleged.

Another plaintiff and former worker, Mihretab Yemane Tekle, said many workers caught malaria and other illnesses.

“I was forced to work at the Bisha mine, and I would never have worked in the conditions in which we worked, or for so little compensation, had I been free to refuse that employment,” the affidavit said.

The company, the lawsuit alleges, should have known that such violations would occur when it decided to partner with the “rogue” state.

Nevsun denies the allegations and says policies were in place to ensure that the Eritrean civil works subcontractor did not use conscripted labour.

The company had tried to argue that the case should be heard in Eritrea. But a B.C. Supreme Court judge agreed with the plaintiffs that a “real risk” existed that the Eritrean legal system would not provide a fair trial. That decision was upheld last week by the B.C. Court of Appeal.

If the case proceeds to trial, it will be the first time a Canadian court has to consider whether a breach of international law can give rise to a private claim for damages.

“So, in the legal world, this is very much a new development, which has real implications for developing international human rights law,” said lawyer Joe Fiorante, who represents the plaintiffs.
Plaintiffs allege security personnel at Tahoe Resource’s mine in San Rafael, Guatemala, opened fire on peaceful demonstrators in 2013 using rubber bullets. Johan Ordonez/AFP/Getty Images

The other two pending cases — against Vancouver-based Tahoe Resources and Toronto-based Hudbay Minerals — involve alleged breaches of traditional Canadian tort law.

Plaintiffs allege security personnel at Tahoe’s mine in Guatemala opened fire on peaceful demonstrators in 2013 using rubber bullets and that they are owed damages related to battery and negligence.

A B.C. Supreme Court judge initially agreed with Tahoe that the case should be heard in Guatemala. But that decision was overturned earlier this year by the B.C. Court of Appeal, which found there was “some measurable risk” the plaintiffs would not get a fair trial there.

The company tried to take the matter to the Supreme Court of Canada, but the top court refused to hear it. The company has not yet filed a statement of defence and has settled directly with some of the plaintiffs.

Meanwhile, Hudbay is facing three related lawsuits that allege the company was negligent in failing to prevent security personnel from carrying out acts of violence — a shooting, a murder and multiple gang-rapes — against members of the indigenous Mayan Q’eqchi’ farming communities in eastern Guatemala, the site of a nickel-mining project.

Hudbay, which has described the allegations as “untrue,” had tried to argue that a parent company could not be held legally responsible for harms caused by a subsidiary. But in an unprecedented decision in July 2013, an Ontario Superior Court judge said a parent company was not necessarily immune from liability.

“This is a new era in corporate accountability,” said Cory Wanless, co-counsel for the plaintiffs, adding that pre-trial questioning of witnesses is still ongoing.

Ben Chalmers, vice-president of sustainable development at the Canadian Mining Association, says the industry is watching the cases closely. In the meantime, the association has implemented mandatory measures to ensure members follow good practices, he said.

Each year, companies are required to complete a self-assessment of how well they’re engaging communities and protecting the environment. Every three years, external auditors are brought in to verify those reports.

But critics say self-regulation doesn’t cut it and are urging the federal government to follow the lead of France, which earlier this year passed a law requiring major multinational companies to publish annual “due diligence” reports spelling out how they and their subsidiaries intend to safeguard against human rights abuses and environmental impacts.

They are also pressing the Trudeau government to fulfill a campaign promise to appoint an ombudsperson to investigate grievances from people impacted by Canadian mining operations abroad.

“That whole panoply of pieces is needed” to prevent abuses and to provide remedies when they occur, said Karyn Keenan, director of Above Ground, a human rights advocacy organization.

The mining association previously wrote in a position paper that it would prefer an ombudsperson not carry out unilateral investigations and instead work with companies using a “joint fact-finding” model, since disputes are often based on “misunderstandings, poor communication and lack of trust.”

A spokeswoman for Global Affairs Canada said Monday the government has been consulting various groups about the ombudsperson role and an announcement should be made soon.

CORRECTION: A group of workers suing Nevsun Resources were employed by an Eritrean civil works subcontractor hired by Bisha Mining, an indirect subsidiary of Nevsun. This story has been updated.