Thank you, Mr. Chair.
Members of the committee, I am a lawyer. I have more than 16 years' experience in international cooperation, in institution building and in democratic development in Latin America and Africa. I have spent time in countries that have allowed Canadian mining projects and I have investigated a number of cases of human rights violations with the UN and the OAS. I have worked with the War Crimes Unit in Canada. I am currently working with the Clinique internationale de défense des droits humains at UQAM. Thank you for inviting me here today.
My presentation will focus on three points: first, the status quo is not a viable solution; second, Bill C-300 is an option that would strengthen corporate social responsibility; third, Canada needs a bill on civil responsibility for human rights violations committed overseas by our companies.
You cannot have a functioning global economy with a dysfunctional global legal system: there has to be somewhere, somehow, that people who feel that their rights have been trampled on can attempt redress...and if the complaints turn out to be unfounded, so be it....people with bona fide claims of abuse have no recourse or remedy, while companies who are falsely vilified for alleged complicity in human rights abuses can not effectively clear their names....it points to the need to have some forum in which this kind of complaint can be ventilated and resolved, and not [be] simply left as a dissatisfied local population squared off against a foreign company with no means of introducing a legal structure to look after the fall-out.
The status quo, meaning the lack of a forum at which parties can be heard, is not a viable solution. This is what Supreme Court Justice Binnie has just told us. It is not viable economically, socially, politically or legally, and this applies to all stakeholders.
Bill C-300 provides for an accessible, predictable and legitimate forum where the two parties can be heard. It is a domestic administrative process that has repercussions beyond our borders, but it is not Canada exercising extraterritorial jurisdiction. Bill C-300 means that decisions made by agents of Canada must comply with Canadian legislation and with Canada's international obligations. The decisions are made on Canadian soil; this therefore gives the federal government the authority to exercise its jurisdiction.
Canada's extraterritorial jurisdiction is exercised directly on a person or firm that has committed acts overseas when a connection with Canada exists. Under certain circumstances, Canada already exercises its extraterritorial jurisdiction on Canadian companies operating overseas. This includes criminal matters, under the Crimes Against Humanity and War Crimes Act. Canada already conducts investigations in the field under that act and under others.
Canada is not the only country to monitor the activities of its mining companies. In fact, some states go much further. They monitor the activities of foreign mining companies. This is the case for Norway, the United States and France, to name but a few.
If we compare what this bill is proposing with what Norway has put in place since 2004, the Norwegian finance minister authorizes extraterritorial investigations into the activities of foreign mining companies. The minister's Council on Ethics uses public sources of information and conducts investigations in the field.
In Canada, neither the 2009 strategy nor the C-300 process allows us to go and conduct investigations overseas at the moment. It remains to be seen what the protocol and the budget will allow, once approved. Even with a budget, an investigation conducted by the CSR counsellor will have the same challenges and constraints as those foreseen by Bill C-300, such as the availability of Canadian resources for investigations, the permission to investigate in host countries, and so on. However, none of that seems to pose any problems for Norway.
As to the way in which complaints are dealt with, the rules of procedural fairness and natural justice apply to all administrative bodies established by a Canadian act. It is assumed that Bill C-300 complies with the Constitution and with the principle of procedural fairness. A recommendation from the counsellor that a company must comply with environmental and human rights standards would have the same force as a decision by the minister under bill C-300, because agents of the state, as representatives of Her Majesty, remain bound by Canadian law. So their decisions must comply.
An agent of the state could not continue to support and encourage a company that has to comply voluntarily. If the company is accused of complicity in torture, rape or war crimes committed in the host country, for example, the agent could also be accused of complicity and tried in Canada.
While we are discussing whether we should make voluntary standards mandatory for government agencies, the United States is discussing The Conflict Minerals Trade Act , a private bill that not only seeks to identify mining companies operating in conflict zones in the DRC, but also seeks to make a map available to the public, and to require communications technology companies, among others, who import those minerals to certify that the minerals used in their consumer products do not come from conflict zones.
So it must be said that, not only is Bill C-300 a tiny step for Canada internationally, but that the mechanism is also far from achieving the compliance that the United Nations recommends for Canada and for mining companies. In fact, the United Nations Committee on the Elimination of Racial Discrimination has already recommended that Canada act to prevent natural resources companies in its jurisdiction from violating the human rights of aboriginal peoples overseas and to make them accountable for their actions.
Bill C-300 does not prevent Canadian companies from violating the standards outside Canada, it does not deal with the responsibility of those that do, and it provides no recourse or compensation for the victims. Should a Canadian act provide for all that? Yes; there is such an act in the United States. It allows complainants to obtain compensation, if need be, and it allows companies to re-establish their reputation. This is exactly what happened with Talisman Energy.
As the American act, the Alien Tort Claims Act, has no equivalent in Canada, provincial programs of civil responsibility apply, or tort law. There is a major legal obstacle: the judge has the discretion to determine whether the most appropriate court to hear the case is here in Canada or in the host state. So the judge can send the case to another country. This is the doctrine of forum non conveniens.
Sending cases back to the host country sometimes results in a denial of justice and a lack of compensation for the victims. This is exactly what happened in the Cambior case. That 1995 case dealt with 2.3 billion litres of liquid containing cyanide, heavy metals and other pollutants that had been spilled into two rivers in Guyana, one of which was the main source of water for the people who lived there. In 1998, a Canadian judge sent the case back to Guyanese courts and they dismissed all subsequent suits, leaving the victims with no recourse and no damages.
The Copper Mesa Mining case, which is currently before Canadian courts, is trying to get round this legal obstacle by contending that decisions made under Canadian jurisdiction, at the head office of a Canadian mining company, gave rise to human rights violations in Ecuador.
Some states are also trying to get around the doctrine. At the end of the 1990s, some countries in Central America passed what are called blocking statutes designed to discourage judges from sending cases back to their countries. In Europe, forum non conveniens is now limited in its application. National courts in member countries of the European Union cannot use the doctrine to dismiss complaints against companies headquartered in those countries.
We are now seeing Canadian companies being sued in the United States and Australia, sanctioned by the World Bank, Norway and France, and investigated in England. Perhaps, with the bill in the United States, we may soon see them overseen by various UN committees, or subject to UN investigations or restrictions or prohibitions in host countries. Canadian mining companies will become more and more watched over, controlled and judged by third party states or international organizations, thereby filling the legal and administrative void in Canada.
In conclusion, at this time when everything is equitable, or eco-, or bio-, when buildings are green, when consumption is ethical, when responsibility is social and when development is sustainable and certified, industries like textiles and agri-food have, both in the North and in the South, set a new course towards greater transparency and greater compliance with human rights. And it has brought them handsome profits.
Are we in Canada going to set that course too and start the journey? Are we going to continue to have others make us do so?
