The U of T’s Faculty of Law organized a mesmerizing set of workshops last Friday to address the issue of accountability by Canadian extractive companies operating abroad. The International Human Rights Program co-presented with the Canadian Centre for International Justice and Amnesty International. Many thanks to Marilyn McKim who attended the session and wrote it up for SRI Monitor, and my apologies to Marilyn because I had to edit it for length!
Audrey Macklin, Professor, Faculty of Law,opened the afternoon session with a caution about calls for transparency from corporations about how they operate. Transparency in reporting should result in accountability, she said, but one must always question who is collecting the information, and who is verifying it before it can be said to have integrity.
The speakers then shared some reflections on accountability.
Catherine Coumans of Mining Watch claims “The mining industry is on the wrong side of history.” She used Barrick Gold’s Porgera Mine in Papua New Guinea as an example. See their latest report here. John Ruggie, she said, had rightly identified the problem as a governance gap. Corporations have great guidelines of behaviour but they are voluntary, so violations cannot be prosecuted in a court of law. Voluntary measures are not evenly applied across jurisdictions, and are not enforceable. The solution is for home states to take regulatory reforms, but that’s unlikely to happen. Time and again she finds that corporations are blocking efforts that could bring justice to those who have been wronged by corporate crimes.
Peter Julian, NDP MP, has prepared a bill, C-354, to submit to Parliament. It would address that governance gap. To create a law in Canada is important because, he explained, 75% of the world’s mining and exploration companies are centred in this country. Many of them are violating laws and creating harm to people and the environment, and yet are not suffering the consequences. Many mining companies lobbied against John MacKay’s Private Members’ Bill C-300 last fall because they felt it would “stain the reputation of Canada.” Peter Julian’s view is that it’s corporations’ bad actions, not the Bill, that stain Canada’s reputation. His bill would enable foreign nationals to bring complaints to a Canadian court. But Mr. Julian will not bring it forward in this session of parliament since the current composition of parliament would allow no chance of the bill’s passage. Bill C-354 enumerates the violations that could be prosecuted, such as genocide, rape, murder and has no time limit by which a complaint must be brought. Since it provides for a federal court to hear cases, which Bill C-300 did not, it may pick up support from some mining companies that are serious about their social responsibility. He feels that the best strategy to garner support for Bill C-354 would be to find allies among those mining companies.
Penelope Simons, law professor at the University of Ottawa, worries that Bill C-354 does not address state immunity in cases where, for example, a government fails to alert the population of an impending environmental emergency. Bill C-483 which is now before the House of Commons, does do this. It is one of five in the area of corporate accountability that are currently being discussed by MPs.
While it is a positive sign that corporate accountability is being championed by individual MPs, we look forward to more policy being adopted by the parties themselves. Perhaps the impending election will give us a chance to raise the profile of these issues.
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