This debate is more than a dispute over facts. It deals primarily with what is actually meant by critical notions such as “responsibility,” “influence,” and “participation.” Those who believe financial investors are exempt from these three terms eliminate any serious consideration of historical facts. Even an approach as cautious as that of London-based Global Witness arrives at a similar conclusion: any company that allows access to destabilizing forces who are “illegally” exploiting resources becomes involved in the conflict, and this is even more obviously true of companies that agree to take on such “illegal” miners as suppliers.113
Surprisingly, the UN itself failed to follow through on its own investigations. Even Gérard Prunier, a French academic who once served as Barrick Gold’s expert in a lawsuit aimed at Noir Canada,114 acknowledges in his book Africa’s World War115 that the UN came under intense pressure from Western “business partners” in Africa to modify the content of these reports or not to publish them.116 In her book Making a Killing, Madelaine Drohan reports that the corporations cited by the UN in 2002 approached Canadian minister of foreign affairs William Graham to pressure the UN to remove their names from the UN list.117
When the Law Is Silent
Other UN documents directly implicate Canada in human-rights abuses, with explicit reference to the indigenous peoples of the Americas. In March 2007, the UN Committee on the Elimination of Racial Discrimination specifically recommended that Canada impose stricter regulations and supervision on the mining companies under its jurisdiction. The CERD recommendations focus on the suffering inflicted on indigenous peoples by the Canadian mining industry abroad. “The Committee notes with concern the reports of adverse effects of economic activities connected with the exploitation of natural resources in countries outside Canada by transnational corporations registered in Canada on the right to land, health, living environment, and the way of life of indigenous peoples living in these regions.”118 In the same report, the committee encourages the government “to take appropriate legislative or administrative measures to prevent acts of transnational corporations registered in Canada which negatively impact on the enjoyment rights of indigenous peoples in territories outside Canada.”119 In particular, the committee recommends that Canada “explore ways to hold transnational corporations registered in Canada accountable for these acts.”120
The committee noted that it was waiting for a formal report from Canada on the issues raised. But no report was forthcoming. Instead, Canada chose to reaffirm its extremely permissive regulatory framework and to present it abroad as a model to be followed by other sovereign states. Canada has no intention of showing consideration for the customary property rights of indigenous peoples. As a country that was built on the dispossession of indigenous populations (and that is still stripping them of their possessions today), Canada remained for years one of a tiny handful of states officially to oppose the UN Declaration on the Rights of Indigenous Peoples (which it did not sign until December 2010).121 Of course, a substantial portion of the world’s unexploited petroleum and mineral reserves lie directly beneath the feet of indigenous populations.
All over the world, countless documents from reliable sources show how often indigenous peoples, such as peasant farmers and artisanal small-scale miners, oppose the presence of Canadian mining companies on their lands, whether for exploration or exploitation. Wherever Canadian mining firms are to be found, the same extremely serious allegations are heard: allegations of massive pollution and ecosystem destruction, brutal eviction at the hands of paramilitary forces, corruption, tax evasion, and even the murder of people opposed to mining activity. Hundreds of these denunciations have been aimed at Canadian mining firms, particularly in Latin America and Africa, but also in East Asia and in some industrialized countries.122 The multiplicity of these denunciations lends support to the idea that Canada today is the keystone of a predatory international mining resource system.
Canadian authorities continue to turn a deaf ear; they decline to investigate transnational corporations as long as the allegations made against them “have not been corroborated.”123 And they never will be, for the government never investigates them. The vocal denials of the companies take precedence over all other testimonials.
Canada presents itself as a legal haven for the world’s transnational mining companies. Registered primarily in Canada, they are subject to virtually no supervision of their potential wrongdoing beyond Canada’s borders. Canada provides them with legal, political, and moral cover, while their subsidiaries, enjoying bank secrecy in the Caribbean, rake in the profits acquired by looting Africa and other continents. This means it is almost impossible to get a judgment in Canada, in either civil or criminal courts, against Canadians or Canadian entities that may have committed abuses or crimes abroad.124
The possibility of domestic legal action against abuses that may have been committed abroad is not as utopian a proposition as it might seem. Precedents have been established in Germany and Belgium.125 In the United States, though it is far from adequate and was weakened by legal decisions in 2009, the Alien Tort Claims Act (ATCA)126 allows federal district courts to hear human-rights lawsuits even where the plaintiffs are foreigners and the facts alleged have taken place outside American borders. It is under this law that the Sudanese Presbyterian Church filed suit in the United States against Talisman Energy of Calgary (registered on the TSX), which was accused of complicity in the violation, by the Sudanese regime, of the fundamental rights of civilians living next to the company’s concession. Talisman requested that the American court drop the case, to no avail. New York Southern District Court judge Denise Cote did not declare American courts incompetent to hear the case, ruling that there exists no possibility for human-rights litigation under Canadian jurisdiction.127 Yet the Canadian government brought its full weight to bear in an attempt to influence American justice: “The Canadian government sent a ‘Statement of Interest’ to Cote claiming the lawsuit would have a ‘chilling effect’ on trade by Canadian companies in the Sudan.”128 The American court then chided the Canadian authorities, pointing to a “lack of understanding about the nature of the claims.”129
The Sudan Peace Act,130 a program of sanctions adopted by Washington in 2002 against the Sudanese government to restrict its public investments, also pointed an accusing finger directly at companies such as Talisman. Though it does not apply to the Canadian firm, a representative of Talisman Energy recognized that the Sudan Peace Act focused a great deal of attention on the company.131
While we may rejoice at these measures, they may have unintended negative consequences. Court decisions brought down under the Alien Tort Claims Act, for example, tend to assign a private character to international debates that are political in nature. But in Canada, there is no need even to discuss such a contingency, since no comparable measure exists in Canadian law. In the area of universal criminal jurisdiction, the Crimes against Humanity and War Crimes Act,132 adopted by Ottawa in 2000, opens the door to judging, on the basis of a restrictive list, crimes committed abroad by Canadians. Over and above matters of legal procedure (obstruction of international