These judicial procedures are, moreover, extremely difficult to enforce. Only the attorney general (the federal minister of justice) can consent to the prosecution of such offences. However, this system contravenes the principle of the separation of powers between the judiciary and executive branch of government. Canadian political authorities have proven reluctant to authorize lawsuits that might cast an unfavourable light on themselves, given their substantial support for Canadian companies abroad. The Canadian International Development Agency backs controversial Canadian mining companies around the world;133 Export Development Canada has used taxpayers’ money to set up an opaque insurance fund that directly benefits these firms,134 while the Canada Investment Fund for Africa finances highly controversial projects on that continent.135
Under both liberal and conservative governments, there is nothing ambiguous about Canada’s official policy with regard to its overseas industries: it is up to the host country to enforce the rules to be applied within its jurisdiction, even if the poverty in which the country is maintained by the international economic system makes it unable to fulfill these functions. Canada has also been doing everything in its power to lessen the scope of the tools that might enable it to seek out irregularities in the way business is transacted by Canadian companies abroad. “With subtle strokes of the pen, it appears that the Conservative government has been systematically changing the language employed by the foreign service, and as a result, bringing subtle but sweeping changes to the traditional Canadian foreign policy,” writes Michelle Collins in Embassy.136 For example, in the world of Canadian international politics, “child soldiers” do not exist; instead, they are vaguely described as “children in armed conflicts.” Moreover, the adjective “humanitarian” finds itself deleted from the concept of “international humanitarian law.”137
However, the relevance of this transfer of responsibility to the host country is refuted by elementary analyses. In 2005, the UN Sub-Commission on the Promotion and Protection of Human Rights reported that crimes committed by private companies in the world result most of the time from complicity, support, partnership, and direct or indirect assistance in the violation of human rights, especially on the part of the host country.138
But Canada does more than ignore these analyses. On the ground in the host countries, not only does Canadian diplomacy put pressure on local authorities, but the mining lobby also throws its full weight into the balance to influence the decisions of political authorities. The former Argentine minister of the environment, Romina Picolotti, admits to having been forced to resign in 2008, following insistent representations by the mining lobby. According to her, as summed up in the Toronto Star: “Barrick, the world’s biggest gold producer, was so successful in convincing the Argentine government to block legislation affecting one of its operations that the cancellation became known as ‘the Barrick veto’.” 139
Filing a complaint is a battle in itself. The case of Cambior, a Quebec-based mining company, shows the de facto immunity enjoyed in Quebec by locally registered mineral firms in relation to abuses committed abroad. In 1995, the collapse of a tailings pond at the Omai mine in Guyana brought about a disaster of unprecedented proportions, contaminating the country’s water system with cyanide and causing grievous harm to the public health of nearby communities as well as the long-term destruction of flora and fauna. A group of 23,000 Guyanese then filed suit against the company in Quebec Superior Court. On August 14, 1998, the court, while declaring itself competent to hear the case, concluded that the Guyanese judicial system had greater competence. In its ruling, the Quebec court raised the lack of a real connection between the victims and Quebec.140 A Guyanese court later declared a mistrial and compelled the citizens’ group to pay the company’s court costs.
In another emblematic case, an association of Congolese law students in Canada, the Association des juristes et étudiants congolais en droit du Canada (AJEC-Canada), unsuccessfully demanded that Canada launch criminal proceedings against Montreal-based Anvil Mining. Charges related to a massacre perpetrated by the armed forces of Congo at Kilwa in 2004, in which seventy-three were killed close to the company’s mining site, and in which the company may have been complicit. The RCMP told AJEC-Canada to ask the federal minister of justice to provide authorization for it to carry out an investigation in Congo-Kinshasa; at the same time, the RCMP warned that it did not have the resources to carry out this investigation. AJEC-Canada’s few exchanges with the federal government or its agencies were by telephone, leaving no paper trail, not even an acknowledgment of receipt.141
On November 8, 2010, Anvil Mining was finally brought to court by a group of DRC citizens, working with the Canadian Association against Impunity, for its alleged role in the Kilwa massacre. However, it seems there will always be a Canadian court ready to turn a blind eye to allegations of atrocities committed elsewhere by Canadian mining companies. On January 25, 2012, the Quebec Court of Appeal overturned the judgment of the Superior Court that allowed the case to be tried in its jurisdiction.142 The court told the parties to return to the DRC, because it offered a more appropriate forum for decision despite the fact that it was a military court that had heard the case there earlier,143 confirming how difficult it is for populations who say they have been harmed by the industry to be heard by the legal system in Canada.144
Hudbay Minerals, a Canadian corporation, has also been sued in Canada for $12 million by Angelica Choc, the wife of Guatemalan activist Adolfo Ich Chamàn, over the death of her husband in September 2009 in Guatemala, where the mining company operates a nickel mine.145 In another case tried by the Ontario Superior Court, three community leaders from Intag valley in Ecuador sued Copper Mesa (formerly Ascendant Copper), as well as the Toronto Stock Exchange, for $1 billion. The three Ecuadorians alleged, on the basis of video evidence, that the company employed the services of a paramilitary organization to expel them violently from their lands. They also claimed to have received death threats. An indicator that the market is quicker to react than the courts, the Toronto exchange in an exchange bulletin issued on January 19, 2010, confirmed that it had removed Copper Mesa from TSX listings. The official reason given: “For failure to meet continued listing requirements of TSX …”146 Nevertheless, in this case Canadian courts once again confirmed Canada’s status as a legal haven. In March 2011, the Court of Appeal of Ontario confirmed a previous decision of the Superior Court and rejected the Ecuadorians’ demand because it presented “no reasonable cause of action.”147
In cases such as these, the international dimension adds a layer of complexity to citizens’ initiatives, both in terms of costs and of competence to hear cases. The chances of success are slender. Palestinian citizens attempted to sue two Montreal-based companies, Green Park and Green Mount, in relation to their activities in Jewish settlements in Palestine, but the case was dismissed in the fall of 2009.148 According to an Oxford University study, Canada has a narrow concept of the territorial limits of judicial competence, allowing private companies to take advantage of the doctrine of forum non conveniens to argue that the Canadian jurisdiction is not qualified to judge cases beyond Canada’s borders, no matter what the involvement of Canadian actors.
Oxford Pro Bono Publico’s critique of Canadian jurisdiction is telling: “The state of Canadian law with respect to corporate social