The Canadian government is failing either to investigate or to hold the country’s massive extractives sector accountable for rights abuses committed in Latin American countries, according to petitioners who testified here Tuesday before an international tribunal.

The Inter-American Commission on Human Rights (IACHR) also heard concerns that the Canadian government is not making the country’s legal system available to victims of these abuses.“Far too often, extractive companies have double-standards in how they behave at home versus abroad.” -- Alex Blair of Oxfam America

“Canada has been committed to a voluntary framework of corporate social responsibility, but this does not provide any remedy for people who have been harmed by Canadian mining operations,” Jen Moore, the coordinator of the Latin America programme at MiningWatch Canada, a watchdog group, told IPS.

“We’re looking for access to the courts but also for the Canadian state to take preventive measures to avoid these problems in the first place – for instance, an independent office that would have the power to investigate allegations of abuse in other countries.”

Moore and others who testified before the commission formally submitted a report detailing the concerns of almost 30 NGOs. Civil society groups have been pushing the Canadian government to ensure greater accountability for this activity for years, Moore says, and that work has been buttressed by similar recommendations from both a parliamentary commission, in 2005, and the United Nations.

“Nothing new has taken place over the past decade … The Canadian government has refused to implement the recommendations,” Moore says.

“The state’s response to date has been to firmly reinforce this voluntary framework that doesn’t work – and that’s what we heard from them again during this hearing. There was no substantial response to the fact that there are all sorts of cases falling through the cracks.”

Canada, which has one of the largest mining sectors in the world, is estimated to have some 1,500 projects in Latin America – more than 40 percent of the mining companies operating in the region. According to the new report, and these overseas operations receive “a high degree” of active support from the Canadian government.

“We’re aware of a great deal of conflict,” Shin Imai, a lawyer with the Justice and Corporate Accountability Project, a Canadian civil society initiative, said Tuesday. “Our preliminary count shows that at least 50 people have been killed and some 300 wounded in connection with mining conflicts involving Canadian companies in recent years, for which there has been little to no accountability.”

These allegations include deaths, injuries, rapes and other abuses attributed to security personnel working for Canadian mining companies. They also include policy-related problems related to long-term environmental damage, illegal community displacement and subverting democratic processes.

Home state accountability

The Washington-based IACHR, a part of the 35-member Organisation of American States (OAS), is one of the world’s oldest multilateral rights bodies, and has looked at concerns around Canadian mining in Latin America before.

Yet this week’s hearing marked the first time the commission has waded into the highly contentious issue of “home state” accountability – that is, whether companies can be prosecuted at home for their actions abroad.

“This hearing was cutting-edge. Although the IACHR has been one of the most important allies of human rights violations’ victims in Latin America, it’s a little bit prudent when it faces new topics or new legal challenges,” Katya Salazar, executive director of the Due Process of Law Foundation, a Washington-based legal advocacy group, told IPS.

“And talking about the responsibility for the home country of corporations working in Latin America is a very new challenge. So we’re very happy to see how the commission’s understanding and concern about these topics have evolved.”
Home state accountability has become progressively more vexed as industries and supply chains have quickly globalised. Today, companies based in rich countries, with relatively stronger legal systems, are increasingly operating in developing countries, often under weaker regulatory regimes.

The extractives sector has been a key example of this, and over the past two decades it has experienced one of the highest levels of conflict with local communities of any industry. For advocates, part of the problem is a current vagueness around the issue of the “extraterritorial” reach of domestic law.

“Far too often, extractive companies have double-standards in how they behave at home versus abroad,” Alex Blair, a press officer with the extractives programme at Oxfam America, a humanitarian and advocacy group, told IPS. “They think they can take advantage of weaknesses in local laws, oversight and institutions to operate however they want in developing countries.”

Blair notes a growing trend of local and indigenous communities going abroad to hold foreign companies accountable. Yet these efforts remain extraordinarily complex and costly, even as legal avenues in many Western countries continue to be constricted.

Transcending the legalistic

At this week’s hearing, the Canadian government maintained that it was on firm legal ground, stating that it has “one of the world’s strongest legal and regulatory frameworks towards its extractives industries”.

In 2009, Canada formulated a voluntary corporate responsibility strategy for the country’s international extractives sector. The country also has two non-judicial mechanisms that can hear grievances arising from overseas extractives projects, though neither of these can investigate allegations, issue rulings or impose punitive measures.

These actions notwithstanding, the Canadian response to the petitioners concerns was to argue that local grievances should be heard in local court and that, in most cases, Canada is not legally obligated to pursue accountability for companies’ activities overseas.

“With respect to these corporations’ activities outside Canada, the fact of their incorporation within Canada is clearly not a sufficient connection to Canada to engage Canada’s obligations under the American Declaration,” Dana Cryderman, Canada’s alternate permanent representative to the OAS, told the commission, referring to the American Declaration of the Rights and Duties of Man, the document that underpins the IACHR’s work.

Cryderman continued: “[H]ost countries in Latin America offer domestic legal and regulatory avenues through which the claims being referenced by the requesters can and should be addressed.”

Yet this rationale clearly frustrated some of the IACHR’s commissioners, including the body’s current president, Rose-Marie Antoine.

“Despite the assurances of Canada there’s good policy, we at the commission continue to see a number of very, very serious human rights violations occurring in the region as a result of certain countries, and Canada being one of the main ones … so we’re seeing the deficiencies of those policies,” Antoine said following the Canadian delegation’s presentation.

“On the one hand, Canada says, ‘Yes, we are responsible and wish to promote human rights.’ But on the other hand, it’s a hands-off approach … We have to move beyond the legalistic if we’re really concerned about human rights.”

Antoine noted the commission was currently working on a report on the impact of natural resources extraction on indigenous communities. She announced, for the first time, that the report would include a chapter on what she referred to as the “very ticklish issue of extraterritoriality”.

Edited by Kitty Stapp

The writer can be reached at cbiron@ips.org

Rosa Tanguila, a Quechua indigenous woman, cleaning up the pollution caused by Texaco in a stream in her community, Rumipamba, in Ecuador’s Amazon jungle region. Credit: Gonzalo Ortiz/IPS

By Stephen Leahy
UXBRIDGE, Canada , May 18 2014 (IPS)

Conflicts with local communities over mining, oil and gas development are costing companies billions of dollars a year. One corporation alone reported a six billion dollar cost over a two-year period according to the first-ever peer-reviewed study on the cost of conflicts in the extractive sector.

The Pascua Lama gold mining project in Chile has cost Canada’s Barrick Gold 5.4 billion dollars following 10 years of protests and irregularities. No gold has ever been mined and the project has been suspended on court order.

And in Peru, the two billion dollar Conga copper mining project was suspended in 2011 after protests broke out over the projected destruction of four high mountain lakes. The U.S.-based Newmont Mining Co, which also operates the nearby Yanacocha mine, has now built four reservoirs which, according to its plan, are to be used instead of the lakes.

“Communities are not powerless. Our study shows they can organise and mobilise, which results in substantial costs to companies,” said co-author Daniel Franks of Australia’s University of Queensland, who is also deputy director of the Centre for Social Responsibility in Mining.

“Unfortunately conflicts can also result in bloodshed and loss of life,” Franks told Tierramérica.

The study is based on 45 in-depth, confidential interviews with high-level officials in the extractive (energy and mining) industries with operations around the world.

“Conflict translates environmental and social risk into business costs” was published May 12 in the Proceedings of the National Academy of Sciences (PNAS). A special report “Costs of Company-Community Conflict in the Extractive Sector” based on the study is also available.

“We wanted to document the costs of bad relationships with communities. Companies aren’t fully aware and only some investors know the extent of the risk,” Franks said.

“If companies are interested in securing their profits then they need to have high environmental and social standards and collaborate with communities,” Franks said in an interview.

Investing in building relationships with communities is far less costly than conflict. Local people are not generally opposed to development. What they oppose is having little say or control over how development proceeds, he added.

“We want development that benefits indigenous people and doesn’t just benefit someone’s brother-in-law,” said Alberto Pizango, president of the  Interethnic Association for the Development of the Peruvian Rainforest (AIDESEP), an indigenous rights organisation in Peru representing 1,350 Amazon jungle communities.

Peruvian indigenous leader Alberto Pizango, who is on trial in connection with the 2009 massacre in Bagua, has at the same time been asked by the Environment Ministry to help plan the next climate summit. Credit: Coimbra Sirica/BurnessGlobal

“Indigenous people have something to say about harmonious development with nature. We don’t want development that destroys our beloved Amazon,” Pizango told Tierrámerica from Lima.

Pizango has been actively resisting the government of Peru’s selling of petroleum concessions to foreign companies on lands legally titled to indigenous people.

The struggle turned violent outside the northern jungle town of Bagua on Jun. 5, 2009, when armed riot police moved to evict peaceful protesters blocking a road. In the clash 24 police officers and 10 civilians were killed.

Pizango and 52 other indigenous leaders were charged with inciting violence and 18 other crimes. They went on trial May 14 in Bagua.

The indigenous people were protesting 10 legislative decrees they considered unconstitutional, which were put in place by the government to foment private investment in native territories.

“We had no choice and thought our protests were fair and that we were right. But it was too high a price. We don’t want to see that again. We want to move from the ‘big protest’ to the ‘big proposal,” said Pizango, who faces a life sentence if he is found guilty.

The study published in PNAS shows that the violence in Bagua could have been avoided if companies and the government acknowledged indigenous rights and worked with local communities.

“It is with great sadness I say this has yet to happen in Peru,” said Pizango, who was not even in Bagua when the violent clash occurred.

Meanwhile, Peru’s Environment Ministry has asked Pizango and AIDESEP to assist in the planning of the big U.N. climate conference to be held in Lima at the end of the year. The indigenous leader hopes the event will show the world that native people can protect the forest and the climate.

Repairing relationships between communities and companies and governments is difficult, said Rachel Davis, a Fellow at the Corporate Social Responsibility Initiative at Harvard University.

“It is much harder for a company to repair its relationship with a local community after it has broken down; relationships cannot be ‘retro-fitted’,” said Davis, a co-author of the study.

Franks compares this to a divorce, pointing out that only rarely do partners remarry.

Leading mining corporations have apparently begun to understand this, and are implementing the U.N. Guiding Principles on Business and Human Rights and adopting the International Council on Mining and Metals Sustainable Development Framework, Davis said in a statement.

But this is not the case in the oil and gas sector. “Their culture is very different. They’re not used to dealing with communities,” said Franks.

The study shows that environmental and water issues are the biggest triggers of conflicts. Activities like hydraulic fracking for unconventional gas and oil are on the rise and are affecting water. Big conflicts are coming, he predicts.

“It’s a good report but doesn’t address the broader economic and political pressure to push projects through quickly,” said Jamie Kneen of MiningWatch Canada.

Shareholders want big returns on their investments and governments want their royalties sooner rather than later. All of this makes corporations less willing to compromise or to take the time to find alternatives that might be acceptable to local people,” Kneen told Tierrámerica.

“Companies know there will be problems with local communities. Companies often gamble that any conflict will not get too high a profile and try to hide this risk from investors,” he added.

Not all conflicts are resolvable, Kneen said. “Some communities will never accept any risk of contamination to their water.”

This story was originally published by Latin American newspapers that are part of the Tierramérica network.