Legislative reform in Canada to combat global impunity of Canadian companies and investors
* Article: "BILL C-323: A TOUGH ON CRIME IDEA WE ACTUALLY LIKE", by by Mary Dirmeitis
* News release: Canadian member of parliament, Peter Julian, announces Bill C-323, a law aimed at "allow[ing] non-citizens to sue Canadians and Canadian corporations for gross violations of basic human, environmental or labour rights when they are committed outside of Canada."
BILL C-323: A TOUGH ON CRIME IDEA WE ACTUALLY LIKE
by Mary Dirmeitis
CORPORATE BAD APPLES MAY FIND THE LAW HARDER TO AVOID
Some of you may remember Bill C-300. Proposed by Liberal MP John McKay, it was an act that pledged to withdraw financial and consular support by government to mining companies who were found in violation of human rights standards. This bill narrowly lost the vote at its third reading 140-134 last October after fellow party members failed to show up. Ahem, Ignatieff.
But ideals around accountable Canadian corporations were not lost along with the Liberal party's former leader. NDP MP Peter Julian has resurrected his previous Bill C-354, now Bill C-323 with its first reading October 5th. An essentially made-in-Canada version of the US Alien Tort Claims Act, this bill amends the Federal Courts Act to permit a non-citizen plaintiff to challenge any body, including a Canadian company, in our federal court system.
Our current system makes it very difficult for victims of human rights abuses abroad to use our federal courts to obtain justice. Bill C-323 will ensure that these victims can follow up on international civil claims in Canada by knocking down a main defence used by many corporations called forum non conveniens. This doctrine allows courts to refuse to taken jurisdiction over a case if there is a more convenient and appropriate forum for the case to take place.
In the mining industry, for example, many injustices occur among
impoverished populations whose court systems may not be willing or able to
entertain a claim against a multi-billion dollar company. So, under forum
non conveniens, Canadian companies can claim that the case should be held in
the country of the alleged abuse, knowing full well that they will escape
unpunished in those courts.
Bill C-323 would diminish the effectiveness of forum non conveniens and
allow cases to be heard in Canada against any corporation and individual by
any individual, for a variety of breaches of international human rights,
international treaties to which Canada is a signatory, as well as for
environmental damage. It would ensure companies understand that they will be
held responsible if their operations are committing abuses.
Although it sounds great, skepticism breeds when it comes to private members
bills actually passing. Even Openparliament.ca writes in their label of
private members bills that "These don't often become law".
But public support can be a real push factor to get contentious legislation
such as Bill C-323 through the house. Just ask McKay, who says that he had
completely underestimated the amount of international support that he
received throughout the two year lifespan of C-300.
Unfortunately, the lobbyists tagged along for the ride. "I didn't anticipate
people coming from all over the world, literally, and either speaking at the
committee or writing letters of support or buttonholing MPs. But because I
didn't anticipate that support, I also didn't anticipate the blowback from
Stepping up to the challenge, Julian is not naive about the now majority
Conservative perspective. "They will try to hide behind voluntary
guidelines, but we have a government that does not, in any way, believe in
corporate social responsibility," he says. "It would be ridiculous to say,
in a community, everybody's going to respect the law on a voluntary basis
and if you break the law there is no sanctions. It's an absurd proposition."
This seems strange as Harper and Co. proudly label themselves as tough on
crime. "When you think about it, this is a government who is willing to fill
the jails with people who have minor drug possession and yet, will allow
Canadian corporations to act with complete and total impunity," states
And to combat the all-powerful mining lobby? Julian has a plan for that too.
He doesn't believe that it is the entire Canadian mining industry that is
guilty of atrocious human rights violations abroad, but that the few are
staining not only the mining sector's reputation, but that of Canada as a
"What I do think needs to happen is a very clear separation, to isolate the
bad apples and promote the necessity for this legislation to be in place.
It's a different strategy where you would divide the mining sector and turn
the sector against the bad apples rather than have the mining industry unite
One mining company in the sights of activists is HudBay Minerals Inc. HudBay
has received significant negative publicity for the actions of the security
forces at their Fenix nickel mining project in El Estor, Guatemala. Cory
Wanless, a lawyer at Klippensteins Barristers & Solicitors, is hoping to
hold HudBay accountable for the death of Adolfo Ich in 2009, as well as
eleven counts of rape in 2007. Wanless believes that you can sue Canadian
companies for what they do abroad as long as there is a substantial
connection to Canada. In this case, since the company is Canadian, there's
However, there is a problem. Along with forum non conveniens, another common
tactic used by multinational corporations is that of the subsidiary company.
When a corporation has a subsidiary, the subsidiary is a company that the
main corporation owns but is not accountable for. So according to HudBay,
the abuses in El Estor were not committed by them and, therefore, they are
not their responsibility. This is because the company that hired the
security forces, CGN, is a subsidiary of HMI Nickel, which has merged with
This is a legally legitimate excuse by HudBay. However, the HudBay executive
in charge of all the company's operations in Guatemala, John Bracale, is
also the CEO of CGN. Therefore, Wanless hopes to prove that HudBay was in
direct control of CGN and had employed their head of security, Mynor
Padilla, Ich's alleged killer.
HudBay also wants to resort to forum non conveniens and have the case heard
in Guatemala. This is bad news for the plaintiffs. "We believe that there is
no chance that our clients can get justice in Guatemala," says Wanless. "And
I don't like criticizing other judicial systems."
If Bill C-323 were to pass, although it wouldn't necessarily affect these
cases, it would greatly clarify the ability for cases such as these to be
heard in the court system of where the parent company is from. For people
like Angelica Choc, the wife of Ich who is the one suing HudBay, this would
mean a chance at justice.
When asked about the impunity rate in Guatemala, Wanless states, "It's
99.75% for violent crime, which, if you round it, that's 100%."
When deciding which court system is most convenient and appropriate, he
believes that considerations of those numbers should be front and centre.
Wanless also believes that this is a Canadian problem. "The decisions, the
financing, the control, of these Canadian corporations happens from Canada.
They're the ones that are pulling the strings. So, when things go wrong, we
believe that they should be held accountable in their home jurisdiction," he
says. "HudBay's offices, for instance, they're just around the corner from
where the courts are. So it is a bit funny for them to be arguing that it is
inconvenient for them to hear the case in Canada."
Wanless sees Bill C-323 as a tool to prevent abuses by companies such as
HudBay. Corporations are rational entities who don't like risk, and he
thinks that by creating risk, such as a threat of litigation, Canadians as a
society can have an impact on the behaviour of companies.
Mark Rowlinson, council in the the United Steelworkers' legal department,
helped Julian write Bill C-323. He agrees that this bill is the way forward.
"Clearly legislation in the area of corporate accountability means something
or else the mining companies wouldn't have resisted C-300 as heavily as they
did," he says.
Both resistance and support for C-300 was immense, but ultimately our
government, with the help of the extractive industry lobby groups,
overturned it. However, support for C-300 was also fractured in the activist
community. Reasons for this included the lack of inclusion of indigenous
sovereignty rights and the limited response given to the government in the
event of a discovery of abuse.
"There is prohibition, but no penalty. So the government can withdraw its
funding, but then can only ask the mining company to stop," explains law
graduate and mining injustice activist Marie Sydney. "So in the off-chance
that the Environment Minister actually decides to investigate and then finds
human rights abuses, there is no provision here that says what the
government can do if the company refuses to stop their operations. It's as
if the government did something, but in effect, it didn't."
McKay admits that "C-300 was not the ten commandments." But even that
glimmer of accountability proved too radical for our Conservative government
and their pals in the extractive industry. Activists who hope for at least a
lesser chance of such widespread, unchecked injustice abroad may do well to
consider the benefits of incremental change. Julian has noticed that the
mining sector seems to react better to a legal remedy, but the reality is
that the sanctions would be stronger under Bill C-323 than they were with
Bill C-300. "We're going to have to work very carefully over the next few
years to make sure that we get the real level of support out across the
country so that we can eventually bring this legislation in," says Julian.
Laws like C-323, although possibly not radical enough for some, may be the
first of many steps to stop the impunity of systemic human rights abuses
executed by Canadian companies abroad. At a time when even baby-teeth bills
are shot down in parliament, Bill C-323 could be the only hope to rein in
the companies that currently have no real reason to act responsibly in their
operations. By even raising the issue, both McKay and Julian are getting in
the heads of Canada's richest companies, and according to Wanless, there is
value to that.
"If this is the sort of thing that lawyers for the companies have to bring
up in board meetings, that directors have to discuss, then I think that's
fantastic, and then perhaps, maybe next time, Adolfo will be alive and there
will be no need to have this sort of litigation."
BILL C-323, THE INTERNATIONAL PROTECTION & PROMOTION OF HUMAN RIGHTS ACT
WALKING THE TALK: HUMAN RIGHTS ABROAD
There continue to be concerns about the behaviour of some Canadian corporations abroad. Canada must make the changes that would help ensure that our legal institutions and system are able to protect from impunity not just Canadians, but also citizens living abroad when they are victims of human, environmental or labour rights violations by Canadian individuals or corporations. Canada's federal government has failed to do so.
I have reintroduced Bill C-323 (formerly Bill C-354) in the hope that we will continue to work together to raise awareness and increase the pressure on the Conservative government to take the bold steps Bill C-323 proposes.
There are companies that do conduct their business in a socially responsible manner. However, there are others that have no regard for human, environmental or labour rights. Currently, these rights are subject to few concrete or effective enforcement mechanisms. As a result, there is an urgent need to create an enforceable legal mechanism to remedy egregious violations of international human rights. Sadly, even modest legislative proposals to bring to account corporate impunity have been rejected by successive federal governments.
I believe that my Bill C-323 (The International Protection & Promotion of Human Rights Act) would fill this need for the victims of international human rights violations when no forum is available to them in the country where the violations are taking place.
As you may know, Bill C-323 would provide international communities with the option to pursue legal recourse in Canadian federal courts, which would include clear violations of international human and environmental rights such as: degrading treatment, arbitrary arrest, kidnapping, infliction of emotional distress, genocide, war crimes, extrajudicial killing, slavery, torture and unlawful detention.
C-323 would create a new civil cause of action that would allow the Federal Courts to hear and decide claims for violations of international law that occur outside of Canada. Specifically, the legislation would allow non-citizens to sue Canadians and Canadian corporations for gross violations of basic human, environmental or labour rights when they are committed outside of Canada.
In keeping with our common goals, I look forward to continuing the good work we have undertaken together in previous parliaments. Together we can bring about these positive changes to help Canada progress and lead, at home and abroad, in the field of human rights and environmental sustainability.
Peter Julian, MP
NDP Industry Critic
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