Corporations Fight Against Access to Domestic Courts for Harm Caused Overseas

People living in countries with weak governance and fragile legal systems have limited access to justice when faced with human rights and environmental abuses by multinational corporations. In 2008, the Special Representative of the Secretary General (SRSG) of the United Nations looking at the issue, John Ruggie, concluded that globalization creates opportunity for multinationals to harm people in other countries (host States) where access to justice is difficult:

The root cause of the business and human rights predicament today lies in the governance gaps created by globalization – between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation. How to narrow and ultimately bridge the gaps in relation to human rights is our fundamental challenge. [emphasis added][1]

In 2011, Ruggie acknowledged that “legal barriers that can prevent legitimate cases involving business-related human rights abuse from being addressed” when “claimants face a denial of justice in a host State and cannot access home State courts regardless of the merits of the claim.”[2]

Canada has proven itself to be a State in which it is very difficult for people who feel they have been harmed by a Canadian mining company overseas to get justice through the courts.

The state of Canadian law with respect to corporate social responsibility, and extraterritorial corporate social responsibility in particular, is generally recognized to be insufficient. Few options are available to non-nationals seeking to pursue Canadian corporations in Canada for wrongs committed abroad...The instances of extraterritorial criminal responsibility are narrowly provided for, and are clouded with doubt as to whether they apply to corporate activity. [3]

The first mining-related case that tested Canadian courts was a suit brought in 1997 on behalf of citizens of Guyana against Cambior before the Superior Court of Quebec. The case alleged damages suffered as the result of a failed tailings dam at the Omai mine that led to a massive spill of heavy metal and cyanide-laden waste into a river system affecting some 23,000 people.[4] The Quebec court declined to hear the case, sending it back to the Guyanese court as the more appropriate forum. In Guyana the case languished and was ultimately dismissed in 2006 – with some $50,000 in court costs levied against the villagers. The inability to have the case heard in Canada led to a chill on further cases being brought in Canada for many years.

Eventually in 2009 a suit was brought before the Ontario Superior Court by three citizens of Ecuador for alleged threats, violence, and human rights abuses by the security forces of mining company Copper Mesa.[5] The case was filed against the Toronto Stock Exchange and the company’s two Canadian directors alleging neglect of duty of care. The case was dismissed on the basis that the TSX and Copper Mesa’s directors did not have enough of a connection to the claimants to owe them a legal duty of care.

There are three other cases pending at the Ontario Superior Court all involving citizens of Guatemala against mining company HudBay Minerals Inc. The allegations against the company’s security forces range from gang rape of 11 women, to murder of a local leader and permanent injury of another local resident. The claimants argue that they must turn to the Canadian courts because there is little chance that they could get justice in Guatemala.[6] The Ontario Superior Court has not yet ruled on whether it will allow the cases to proceed in Canada.

The Anvil Case - Supreme Court declines opportunity to rule on Canada as an appropriate forum

In November, 2010, the Canadian Association against Impunity (CAAI), an organization representing survivors and families of victims of a 2004 massacre at Kilwa in the eastern Democratic Republic of Congo (DRC), filed a class action lawsuit against Anvil Mining before Quebec Superior Court. The suit accuses Anvil of “involvement in the atrocities through having provided logistical support to the Congolese army. The army raped, murdered and brutalized the people of the town of Kilwa in the DRC. According to the United Nations, an estimated 100 civilians died as a direct result of the military action, including some who were executed and thrown in mass graves. Anvil Mining has admitted to providing the army with trucks, food, lodging and other logistical support but claims it was requisitioned by the authorities and denies any wrongdoing.”[7]

The plaintiffs argued that the alleged victims could not possibly get access to justice in the DRC and that therefore the case should be heard in Canada. “In the only previous examination of the massacre, in a much-criticized military trial in the DRC, three of Anvil Mining’s employees, including one Canadian citizen, were indicted and then acquitted. Anvil Mining’s Congolese subsidiary (Anvil Mining Congo) was also “cleared” despite never having been indicted.” In April 2011, Justice Benoit Emery of the Quebec Superior Court ruled that the case could proceed to the class certification stage. But Anvil mining appealed the ruling and the Quebec Court of Appeal, “despite stating sympathy for the obstacles faced by the victims in seeking justice, overturned the earlier Court’s decision on jurisdiction.”[8]

The plaintiffs requested leave to appeal to the Supreme Court of Canada but on November 1, 2012 the Supreme Court of Canada denied the plaintiffs the right to appeal. A member of CAAI noted that: “This case highlights the extreme difficulty victims of gross human rights violations face when trying to receive justice. It has been eight years since the Kilwa massacre and the victims and their families have met another roadblock in their search for accountability for the crimes they were subjected to. Despite this setback, we will continue to work with the families affected to fight for justice in this case.”[9]

Seeking a legal fix to the problem of access to justice in Canada

NDP Member of Parliament Peter Julian has tabled a private member’s bill, C-323, that seeks to provide a civil cause of action in Canada for non-Canadian citizens who allege that they have been harmed by a Canadian company. Bill C-323 is modelled on the United States’ Alien Tort Claims Act (ATCA) that allows foreigners to sue in US district courts for acts committed outside of the US in violation of the law of nations or a treaty of the United States such as genocide, war crimes, extrajudicial killings, slavery, torture, prolonged arbitrary detention, or crimes against humanity. Since 1980 ATCA has been used to sue corporations resulting in two judgements against corporations and about a dozen out-of-court settlements.[10] Bill C-323, which went through First Reading in the House of Commons on October 5, 2011, broadens the cause of action to include abuses of basic human rights, environmental rights, and labour rights.

Access to justice against corporations now threatened in the US

The Alien Tort Claims Act, which dates back to 1789, has only been used against corporations since 1980. Now, however, its scope is being questioned, regarding whether corporations – in addition to ‘natural people’ – can be held liable. In 2010, the Second Circuit Court of Appeals in the US held in Kiobel v. Royal Dutch Petroleum Co. that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the [ATCA].” Subsequently, however, three other Circuit Court of Appeals in the US have all ruled that corporate liability is possible under the statute. On October 17, 2011, the U.S. Supreme Court announced that it would hear an appeal in Kiobel. The case pits Nigerian plaintiffs against the Anglo-Dutch corporation Shell for extrajudicial killing, torture, crimes against humanity, arbitrary arrest and prolonged detention.

Oral arguments in the case were heard in February 2012. In March of 2012, the Supreme Court broadened the issue under review to include the question of whether foreign corporations should ever be allowed to be sued in US courts, and re-argument occurred on October 1, 2021. A decision is expected early in 2013.

Westray + 20 – Corporate Criminal Negligence in Canada

On May 9, 1992, twenty-six men died when the Westray coal mine exploded in Stellarton, Nova Scotia. The tragedy led to a public inquiry that focused on the failure of Westray senior officers to prevent a predictable disaster, and a Nova Scotia Supreme Court judge called on the Federal government to overhaul the Criminal Code. In 2004, Bill C-45, the “Westray Bill” was passed. The bill “imposed a duty on those who direct how people work to protect them from bodily harm. This imposed a positive duty on senior officers to ensure that work is designed, planned, and supervised to be carried out safely.”^[11] In spite of the Bill’s passage in 2004 and the subsequent amendments to the criminal code, and in spite of the fact that many Canadians have died at work since then, no case law is yet on the books that directly addresses the amendments.^[12] A conference was recently held in Ottawa to examine this issue on the 20^th anniversary year of the Westray disaster. One of the reasons identified for the low level of application of the Westray amendments to workplace incidents is that these are commonly initially characterized as “accidents” and not investigated first by police as potential criminal cases. Labour inspectors do not have the authority to conduct a criminal investigation, and while they can call in the police they do not seem to do so.