The first step towards corporate accountability for actions abroad? – by Sonya Nigam (Canadian Lawyer – October 14, 2013)

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Human Rights . . . Here & There

There is no doubt as a resource-based economy, Canada has developed an impressive and robust extractive industry sector some would argue is part of our “national security interests.” While this sector brings important gains to the Canadian economy, oil, gas, and mining activities are increasingly taking place in remote areas that have a detrimental effect on local, often indigenous, populations.

Increasingly, Canadian extractive companies and their subsidiaries have been the subject of allegations of human rights violations associated with their overseas activities, particularly when operating in developing countries. For years, liability before Canadian courts has been avoided. However, the recent decision of the Ontario Superior Court in Choc v. Hudbay Minerals Inc. may be the first step towards recognition that Canadian companies should be accountable for their behaviour outside Canada.

Under international human rights law, states have international legal duties to protect the human rights of individuals within their territory and subject to their jurisdiction. However, for a range of reasons host states may be unable or unwilling to regulate the conduct of foreign business actors, even where not doing so violates their international obligations to protect human rights.

A report commissioned by the Prospectors and Developers Association of Canada and publicly leaked in 2010 found that of 171 high-profile incidents involving mining companies since 1999, 34 per cent of companies implicated in such incidents were Canadian. These incidents included environmental and human rights abuses, and conflict with local communities.

Canadians were found to be involved in four times as many incidents as Australian and British companies, both very active in the sector. The report noted some of these high numbers were likely due to the fact 75 per cent of the world’s largest mining exploration and development companies are Canadian.

In an interview, Penelope Simons, an expert in transnational corporate accountability, described the accountability problem as follows:

“International human rights law does not impose obligations on home states, such as Canada, to regulate transnational corporate activity. There are also few effective domestic legal mechanisms that can be used to challenge, monitor, or sanction corporate conduct in order to ensure that Canadian investment abroad does not contribute to, or profit from, violations of human rights. The voluntary self-regulatory mechanisms that have been developed so far have failed to ensure that transnational corporate actors do not violate or contribute to violations of human rights in the host states in which they operate.”

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