Generating rights for communities harmed by mining: legal and other action

Abstract

Abstract As global mineral prices and production have boomed, Canadian mining companies have expanded their operations abroad with the support of the federal government. In light of the unregulated character and often destructive impacts of much new mining activity, the recent extractive industry expansion has been accompanied by increasing conflict. We analyse lawsuits launched in Canadian courts and in the inter-American human rights system by affected communities in Latin America. We conclude that both new legislation (such as Bill C-300) and continued effective collaboration between local civil society and Canadian NGOs are required for peaceful resolution of conflicts.

Résumé Avec une forte croissance de la production et des prix des produits miniers, les entreprises minières canadiennes ont élargi leurs opérations à l'étranger avec le soutien du gouvernement fédéral. Dans un contexte de vide règlementaire et des conséquences destructives de cette industrie, le développement du secteur a été accompagné de plus en plus de conflits. Nous analysons les poursuites judiciaires lancées au Canada et dans le système des droits humains Interaméricain contre les entreprises minières canadiennes. Nous concluons que de nouvelle législation (comme la loi C-300) et une collaboration continue et efficace entre la société civile et les organisations non gouvernementales canadiennes sont nécessaires pour la résolution pacifique des conflits.

Keywords:

• mining
• human rights
• Latin America
• indigenous rights
• CSR

Acknowledgements

We thank Luis Manuel Claps, manager of the Mines and Communities website, for his collaboration in identifying conflict cases. Many thanks to our colleagues Gavin Fridell, Ricardo Grinspun, Malcolm Rogge and Steven Schnoor, and to the anonymous reviewers of this work for their very helpful comments. Prepared originally for the Workshop on Global Capital, Global Rights at Simon Fraser University in Vancouver (3–4 May 2012), this article was revised for the May 2012 Meetings of both the Canadian Association for Latin American and Caribbean Studies (CALACS) at the University of British Columbia (UBC), Okanagen and the Latin American Studies Association (LASA), San Francisco.

Notes

We define these as companies that are listed on one of Canada's stock exchanges.

See “A Report on the State of the Canadian Mining Industry Abroad: Facts and Figures 2010,” available at http://www.mining.ca/www/media_lib/MAC_Documents/Publications/2010/Facts_and_Figures_2010_English.pdf. A spokesperson of the mining industry claims that mining in Canada itself “contributed $40 billion to gross domestic product in 2008 (and accounts for nearly a fifth of Canada's goods exports), employed 351,000 workers and paid $11.5 billion in taxes and royalties to federal, provincial and territorial governments” (The Vancouver Sun, 26 May 2010).

The court records and many of the publications of civic organisations, as well as data on pension plan mining sector investment, were accessed through websites.

For an analysis of the legal issues of jurisdiction and bases for the decisions in the cases presented here, see Imai, Maheandiran, and Crystal (forthcoming).

In November 2006, Cambior merged with IAMGOLD, a company that was involved in conflict with rural and indigenous communities in the province of Azuay in southern Ecuador.

Regarding the difficulties of suing Copper Mesa directly, see Moore (2010).

The Intag valley conflict, but not the legal case, is recorded in a prize-winning documentary film directed by Malcolm Rogge (2008).

Piedra v. Copper Mesa Mining Corporation (March 11, 2011), ONCA 191. Ramirez v. Copper Mesa. http://www.ramirezversuscoppermesa.com-legl-docs-court-of-appeal-decision.PDF.

Piedra v. Copper Mesa Mining Corporation (May 7, 2010), ONCA 2421. http://www.ramirezversuscoppermesa.com/legal-docs-motion-to-strike-decision-may-7-2010.

Piedra v. Copper Mesa Corporation (2011). Decision of the Court of Appeal for Ontario. ONCA 191.C52250. http://www.ontariocourts.on.ca/decisions/2011ONCAD.

The NGOs grouped in the Canadian Association against Impunity are: Action Against Impunity for Human Rights (ACIDH) and African Association for the Defense of Human Rights (ASADHO) in the Congo; Rights and Accountability in Development (RAID) and Global Witness in Britain; and L'Entreaide Missionaire and the Canadian Centre for International Justice (CCIJ) in Canada.

In August 2011, HudBay Minerals sold its Guatemalan Fenix mining project to Solway Group, a private Russian company incorporated in Cyprus. However, the suit continues as legal counsel argues that “HudBay and HMI Nickel cannot avoid liability for their past actions by selling the project” (Rights Action, 10 August 2011. http://www.rightsaction.org/articles/HudBay_sells_mine_081111.html. HMI Nickel was formerly named Skye Resources, whose violent eviction of peasants from their lands was filmed by Steven Schnoor, as discussed later.

The civic organisations are Mining Watch Canada, Common Frontiers, Council of Canadians, United Steel Workers, le Comité pour les droits humains en Amérique Latine, Atlantic Regional Solidarity Network, Sierra Club of Canada, L'Entraide missionaire and the Social Justice Committee.

On 20 July 2011, the RCMP raided the office of Blackfire Exploration Ltd. To quote the Globe and Mail, the company is accused of paying the local mayor “about $19,000 (CDN) to keep the peace and prevent local members of the community from taking up arms against the mine” (The Globe and Mail, 29 August 2011).

The information about CPP holdings is cited from: CPP Investment Board (31 March 2011), Canadian Publicly-Traded Equity Holdings. http://www.cppib.ca/files/PDF/CDN PublicEquityHoldings March312012.pdf. The information regarding Québec is cited from Caisse de Dépôt et Placement du Québec (31 December 2010). http://www.lacaisse.com/sites/all/files/medias/fr/nouvelles-medias/documents/ra2011_renseignements_add_fr.pdf.

In the Intag valley, cooperative coffee producers and a local environmental organisation, Defense and Conservation of the Intag (DECOIN), obtained support from NGOs in Canada, Japan and Europe; Rights Action has defended the residents of communities affected by Canadian miners in Guatemala, Honduras and Mexico.

The OBDPI is a Chilean NGO that is “devoted to promoting, documenting and advocating the rights of indigenous peoples” (from OBDPI mission statement; see http://www.observatorio.cl/). According to the organisation's website, the Diaguita Agricultural Community consists of “250 families of indigenous peasants, farmers and herders.”

See Teachers' Pension Plan (31 December 2010). 2010 Annual Report. Ontario Teachers' Pension Plan. http://www.docs.otpp.com/AnnualReport2010.pdf.

These include the Latin American Water Tribunal that documented water contamination and depletion; US-based E-Tech International, an NGO that found excessive amounts of cyanide, copper and mercury present in water in the tailings pond; the Physicians for Human Rights, with environmental health scientists from the University of Michigan, found evidence of lead in blood and arsenic in urine samples from people at the site. See Mining Watch website (http://www.miningwatch.ca) for these sources.

See statement by the Ministry of Finance, 30 January 2009, “Mining Company Excluded from the Government Pension Fund – Global due to Contribution to Serious Environmental Damage.” http://www.regjeringen.no/en/dep/fin/press-center/Press-releases/2009/mining-company-excluded-from-the-government.htmil?id=543107.

See the Global Post analysis filed in March 2011. http://www.globalpost.com/dispatch/news/regions/americas/costa-rica/110311/gold-metal-mining. In another case, see the report about the impact of the conflict over the Rio Blanco Project in Piura, Peru, on the functioning of a central government ministry (Bebbington et al. 2007).

The Tambogrande case is chronicled in the 2007 documentary film Tambogrande: Mangos, Murder, and Mining, winner of 11 international awards (Cabello 2007). In Esquel, a university with research capacity, strong and well-informed teachers' unions and student associations were important bases of mobilisation for driving out Meridian Gold. The expulsion of the corporations, however, does not necessarily result in viable alternatives to mining; in Tambogrande, ‘informal mining’ is now taking a toll on the environment.

Personal communication from Ricardo Grinspun, 18 April 2012.

See “Canadian Ambassador Sued for Defaming Documentary Film Maker Steven Schnoor.” Schnoor v. Canada, 2012. http://www.schnoorversuscanada.ca/. Schnoor's video had been viewed 176,575 times on YouTube as of 22 March 2012.

Personal communication from Steven Schnoor, May 2012.

The WUSC/Rio Tinto Alcan partnership provides $428,000 in matching funds to the CIDA contribution, while company profits in 2010 were $726,000,000; IAMGOLD is providing $1 million from its 2010 gross profit of $597,000,000; and the World Vision/Barrick Gold partnership is providing $500,000 when Barrick's 2010 net profit came to $3,279,000,000 (The Dominion, 19 December 2011).

A forceful argument for home state regulation of mining corporations is presented by Sara Seck (2008), professor of law at the University of Western Ontario.

To be fair to CPP managers, they may not have the legal power to divest from a company for any reason other than poor financial performance.

See the article by Veltmeyer in this issue.

Additional information

Notes on contributors

Liisa L. North

Current affiliation: Visiting professor, FLACSO-Ecuador, Quito, Ecuador