Reflections on the corporate social responsibility landscape for Canadian mining transnational corporations in the aftermath of Nevsun Resources Ltd v Araya

Abstract

This paper explores the corporate social responsibility (CSR) landscape for Canadian mining transnational corporations (TNCs) in the wake of the landmark decision of the Supreme Court of Canada in Nevsun Resources Ltd v Araya, which settles, as concrete law, the right of foreign victims of transnational torts committed by Canadian TNCs to bring an action in Canadian courts. The paper acknowledges that there has been an increasing tendency by the Canadian government to create, by way of legislation, legal responsibility for some of the corporate behaviours that had been only governed by CSR initiatives. It argues that the right of action established in the Supreme Court decision adds to the introduction of legal responsibility into the realm of social responsibility, thus calling into question the continuing relevance of CSR initiatives for mining TNCs. It concludes that despite the apparent encroachment upon the social responsibility sphere by legal responsibility, CSR initiatives still hold a place of importance for mining TNCs. Canadian mining TNCs will continue to use the CSR front to gain acceptance in local communities, but may now be potentially held legally responsible through extraterritorial litigation in Canada when their activities run afoul of their own CSR creed or programme and/or violate the rights of local people in their host countries.

Keywords:

• corporate social responsibility
• mining law
• transnational corporations

1. Introduction

In February 2020, the Supreme Court of Canada rendered a landmark decision in Nevsun Resources Ltd v Araya,¹ in which it upheld the decisions of both the Supreme Court and Court of Appeal of British Columbia, that failed to allow a motion by Nevsun Resources Limited (‘Nevsun') seeking to strike out claims by three Eritrean workers who alleged that Nevsun had violated their human rights when they were forced to work at its mine in Eritrea.² In the action, the Eritrean plaintiffs sought damages for breaches of customary international law norms prohibiting forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity.³ They also sought damages for common law torts including conversion, battery, unlawful confinement, conspiracy, and negligence.⁴ Nevsun’s operations in Eritrea are carried on through a subsidiary corporation that is in a joint venture with an Eritrean state-owned corporation that deployed workers who were conscripted into the Eritrean army under a National Service Program, to work at the mine.⁵ The Supreme Court of Canada’s decision meant that the action could proceed in British Columbia, but Nevsun has since settled out of court.⁶

While this case engages various areas of law, especially customary international law, forum non conveniens, extraterritoriality, international human rights law, and common law about torts, and has attracted commentaries along that line,⁷ in the industry circles, the manner of corporate behaviour that gave rise to the court action falls within a range of corporate misconducts (including corruption and bribery of foreign government officials) that are often dealt with under the corporate social responsibility (CSR) discourse – a non-legal and non-binding initiative by which corporate entities are enjoined to engage in good behaviour. In the recent past, some statutes have been enacted in Canada, such as the Extractive Sector Transparency Measures Act (ESTMA)⁸ among others, which impacts the CSR landscape by creating legal obligations of some sort that extend to some of the issues previously within the realm of the CSR governance system. ESTMA is an anti-corruption standard that requires Canadian corporations in the extractive industries to disclose the revenue they pay to governments in their host countries. When one considers this development alongside the decision in Nevsun’s case, some critical issues or questions become compelling and beg for answers. For example: To what extent can it be said that CSR is being replaced by legal responsibility, particularly for the mining transnational corporations (TNCs)? Does CSR still have a governance space for the Canadian mining TNCs? However, given that Canada is a global superpower in the mining industry, the real question becomes how Nevsun’s case would impact the decision of Canadian mining TNCs to freely continue to operate in foreign countries and secure Canada’s security interest in precious minerals. While it is important for TNCs to behave ethically, it is also important that this new development that has the potential to unsettle Canada’s hegemony in this strategic industry be explored for policy reasons. Nevsun’s case, therefore, provides a basis to revisit and reflect on CSR for Canadian mining TNCs, which is the objective of this paper, with an overarching question as to how the decision has reshaped the overall CSR landscape in the mining industry.⁹

This paper consists of six sections, including this introduction, which is section 1. The second section provides a background context for understanding the place and relevance of CSR in the mining industry. Section 3 examines the nature of the CSR landscape for Canadian mining corporations, touching on its core dimensions, sources, scope, and implementation. The fourth section explores the key ways in which CSR’s purview has been shrinking and legal responsibility enlarging. In particular, it considers the recent efforts by Canada’s parliament in enacting concrete laws that impose legal responsibilities on Canadian mining TNCs on issues that were previously only addressed through CSR recommendations. The fifth section examines the implications of incremental legal responsibilities in the CSR landscape, while the sixth section concludes the paper.

2. The background context for CSR in the mining industry

The behaviour of the mining TNCs like those of other TNCs in other industries, whether of Canadian origin or not, has been – for years – discussed and interrogated through the CSR lens. CSR is a tag of regulatory burden incidentally ascribed to every large private-sector corporate entity irrespective of their area of business. Although CSR has no single widely accepted definition, it is commonly considered to encompass some correlated prongs, namely voluntary action by a business, to address stakeholder concerns regarding the business’s social, economic and environmental impacts.¹⁰ Put differently, CSR may be described as a system of non-binding codes of conduct, strategies, or activities beyond legal obligations, undertaken by corporations in order to conduct their affairs in ways that conform to international best practices, including not engaging in bribery of the officials of foreign governments or any other form of corruption, and to show respect for human rights, the environment, and labour standards in their host communities. Indeed, over a century ago, the shadow of some aspects of what is today clearly conceived as CSR was beginning to hover around corporate thinking and corporate decision-making.¹¹ Recently, it found a definite expression within the annals of Canadian jurisprudence.¹² The judicial thoughts thus underline the notion that a corporation is also a social actor, and as such cannot only be held to the responsibility of making profits but ought also to carry some social responsibilities, reflected in meeting the expectations of its diverse stakeholders.¹³

As a concept, CSR came into relative prominence in the 1990s through the early 2000s, with the increase in economic globalisation. This is when TNCs all over the world began to move their operations, particularly their production lines, to developing countries in the form of foreign direct investments.¹⁴ The peculiar nature of the new-found operational environments, characterised by severe governance gaps, corruption, little or no awareness of or respect for human rights, civil conflicts, weak political institutions, and a copious lack of will on the part of the host governments to effectively regulate or control foreign investors, heightened CSR concerns.¹⁵ These concerns are further compounded by the fact that the TNCs are not subject to any specific global regulator.¹⁶ For mining TNCs, their industry raises particular concerns because of the adverse social and environmental impacts that are intrinsically associated with mining projects. For instance, pollution of water through acid rock drainage, toxic wastes coming from processing of metals, airborne pollution associated with smelting processes, and ample extirpation of the earth as a result of open-pit mining have been described as some of the mining industry’s legacy of hazards.¹⁷ Depending on the particular circumstances of occurrence, these hazards trigger environmental and human rights concerns.

With the revolution in information technology and mass media, the remote local communities in host countries who bear the adverse brunt of TNCs’ activities are no longer isolated.¹⁸ As Paul Kapelus clearly explained in the early 2000s, civil society groups, especially environmental and corporate watchdogs including non-governmental organisations (NGOs), capitalising on the improved communication systems, expanded their activities with the trend of globalisation, thus bringing the TNCs under increased surveillance by criticising their wrongdoings and mounting pressure on them to operate in a socially responsible way.¹⁹ On the part of the victims of TNCs’ activities, there is often little or no legal recourse in the TNCs’ home countries.²⁰ Essentially, to a reasonable extent, the CSR paradigm has become a narrative or mantra for ensuring that TNCs in developing countries with weak institutions and high political maladministration conduct their affairs in ways that conform to international best practices, and show respect for human rights and the environment in their host communities.

Being often bedeviled by the issue of having to operate in a socio-politically charged business environment, in addition to adverse publicity by powerful NGOs, mining TNCs, for their part, began striving to obtain what some scholars refer to as a ‘social licence to mine’ or a ‘social licence to operate’ (SLO).²¹ The TNCs apparently awoke from their slumber to realise that for them to have sustainable access to minerals and maintain a peaceful business environment, the government’s regulatory permits alone were not enough.²² They also require a licence to mine, and this comes in the form of establishing goodwill and earning the cooperation, support, and acceptance of the local communities where they operate.²³ While the concept of an SLO has inspired a large body of literature in which efforts have been expended to formulate it as a distinctive normative concept across the extractive industries,²⁴ in reality it is directly related to the CSR paradigm, or rather an aspect of wider CSR initiatives.²⁵ Reference to it in this paper is made in that sense.

One vital observation in light of the foregoing is that at the very core of the CSR discourse is the governance or regulatory gap concerning the externalities of TNCs’ operations, not least their operations in third-world countries. Under the guise of CSR, TNCs are only given recommendations or encouraged to be good corporate citizens. Essentially, the failure of a corporation to live up to its CSR normative expectations scarcely attracts any legal sanctions.²⁶ This is a fundamental attribute of CSR, which underscores the source of the ‘responsibility’ – social as opposed to legal.²⁷ It is against this backdrop that this paper seeks to explore the current CSR landscape for Canada’s mining TNCs in the aftermath of the Nevsun decision.

3. The CSR landscape for Canada’s mining TNCs

The consideration of the CSR landscape in this section covers both the local and international aspects in terms of normative scope and sources as well as implementation, to provide a rich context for the appreciation of the theme of this paper and, more so, because Canadian mining TNCs routinely ply their trade abroad and, as such, mining industry-based CSR apparatus extends to corporate behaviours in and out of Canada.

3.1. The CSR norms, sources and scope

An important CSR commitment in Canada’s mining industry dates back to the early 1990s. In 1992, the Mining Association of Canada (MAC) initiated a multi-stakeholder process that brought together government, industry, labour, Aboriginal, and environmental groups to develop a policy framework that accommodates the various interests impacted by mining operations.²⁸ The process was undertaken as MAC’s reaction to a myriad of public concerns about the mining industry, especially about the environmental impacts of mining, human resources and employment, taxation regimes, environmental assessment processes, permitting and regulations, land claims and land access, and, most importantly, dwindling public support for mining.²⁹ The initiative became known as the Whitehorse Mining Initiative (WMI).³⁰ The WMI at its peak produced a Leadership Council Accord, signed by the parties on 13 September 1994.³¹ According to the government of Canada, a party to the initiative, the accord was articulated to be a forward-looking policy framework to drive a sustainable mining industry into twenty-first-century Canada.³² Surprisingly, except for being analysed from the perspective of sustainable development,³³ the WMI has not featured in any CSR discourse despite the fact that its vision and principles have socially and environmentally underpinned CSR,³⁴ in addition to being one of the first non-binding normative regimes in the area.³⁵ Arguably, one cannot rightfully summarise the WMI’s policy statement on environmental protection without saying that it recommends undertaking mining in ways that sustain a healthy environment.³⁶ Similarly, the WMI’s policy statement on Aboriginal involvement in the mining industry reflects a commitment by mining industry proponents to facilitate economic growth in Aboriginal communities particularly where mining is done, by ensuring, among other things, an ‘increased participation of Aboriginal peoples in all parts of the mining industry, including direct employment and related economic or business opportunities’.³⁷

Another effort was made on a different front by the industry to demonstrate commitment to enhancing the CSR of its participants. In 2009, the Prospectors and Developers Association of Canada (PDAC) developed e3 Plus Principles and Guidelines for responsible mineral exploration, which are an upgraded version of its original e3 principles for Environmental Excellence in Exploration.³⁸ A signature CSR initiative of the PDAC, e3 Plus is hosted as an online resource to help corporations exploring for minerals improve their social, environmental, and health and safety performance.³⁹ It may be recalled that prior to the PDAC’s e3 initiative, the MAC had in 2004 implemented a sustainable mining action plan, in a show of support and adoption of a 2002 Mines, Minerals and Sustainable Development Initiative of the International Institute for the Environment and Development, which produced a report on how the mining industry could increase its contributions to sustainable development.⁴⁰

Independently, the government of Canada through its agencies has been instrumental in promoting CSR in the country. In pursuit of its mandate, Industry Canada⁴¹ published, in 2014, a CSR implementation guide for Canadian businesses (hereafter IC Guide).⁴² The IC Guide chiefly provides vital information on building a business case for executing CSR initiatives, developing and implementing a CSR strategy, and measuring and communicating the outcomes.⁴³ It demonstrates that CSR initiatives touch on 16 issues, some of which it acknowledges as intersecting with Canada’s regulatory and legal frameworks.⁴⁴ But the most notable CSR issues among them, especially for mining TNCs and other extractive industry players, pertain to anti-bribery and corruption, corporate ethics, employee and community health and safety, environmental stewardship, human rights, and labour rights.⁴⁵ Further, it clearly emphasises that CSR considerations have become integral to business success.⁴⁶ Indeed, the IC Guide presents itself as an important document that every Canadian business including mining TNCs should look to in building itself as a CSR-compliant organisation. It draws upon and endorses a myriad of other CSR standards, guidelines and initiatives of both local and international sources, with the implication that those standards, guidelines and initiatives are also a source of CSR norms for Canadian business entities.⁴⁷

In 2015, Natural Resources Canada published what it calls the CSR Checklist, to provide the Canadian mining corporations doing business abroad a tool that can assist them to plan for and mitigate potential environmental, social and ethical challenges they may encounter.⁴⁸ The CSR Checklist recognises that social risk to both the community and mining corporations arising from mining operations can be mitigated or dealt with through basic community relations approaches and engagement, and by addressing a few misconceptions within the mining industry concerning the need to have an effective CSR plan.⁴⁹ It particularly highlights nine issues it considers of high importance for mining corporations when developing their CSR initiatives: land access; in-migration; community health, safety and security; the environment; cultural heritage; local employment; local procurement; community investments; and community relationship management.⁵⁰ The CSR Checklist, however, places human rights concerns on a special pedestal and directs the corporations to the United Nations Guiding Principles on Business and Human Rights for guidance in building respect for human rights in their corporate practices.⁵¹ It further demonstrates the Government of Canada’s commitment to encouraging all Canadian corporations doing business abroad to comply with other international CSR standards. It places particular emphasis on the following international standards as key parts of Canada’s CSR approach, as well as highlighting how to achieve their compliance: the Organisation for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises; the International Finance Corporation Performance Standards on Environmental and Social Sustainability; the Voluntary Principles on Security and Human Rights; the Global Reporting Initiative; the United Nations Guiding Principles on Business and Human Rights; and the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and Human Risk Areas.⁵² Importantly, the checklist also promotes and places high importance on CSR reporting.⁵³

Seemingly, the CSR Checklist may have been a culmination of efforts that date back to 2009 when the administration of then Prime Minister Stephen Harper launched the Government of Canada’s first CSR Strategy for Canadian extractive sector corporations operating abroad.⁵⁴ The CSR Strategy was later reviewed and enhanced in 2014.⁵⁵ Some of the highlights of the enhanced 2014 Strategy are a key statement that underscores the benefits of CSR⁵⁶ and a principled Canadian position that where a host country’s CSR requirements differ from the international standard, corporations are to comply with the higher standards found in specific international CSR standards – the same ones mentioned in the paragraph immediately above.⁵⁷ As part of the 2009 CSR Strategy, the Office of the Extractive Sector Corporate Social Responsibility Counsellor (the ‘Counsellor’s Office') was established to administer the CSR Strategy. The Counsellor’s Office had a dual mandate: first, to advise extractive sector corporations and other stakeholders on the implementation of CSR performance standards and guidelines; and, second, to advise and review the CSR practices of Canadian extractive sector corporations operating abroad.⁵⁸ The enhanced 2014 CSR strategy, for its part, introduced a penalty for corporations that fail to adopt CSR best practices and those that refuse to participate in the Counsellor’s Office dialogue facilitation processes.⁵⁹ The stated penalty was the withdrawal of the Government of Canada’s support in foreign markets to such corporations.⁶⁰ But the Counsellor’s Office as well as its mandate ended on 18 May 2018. It is beyond the scope of this paper to inquire into its efficiency during the years that it functioned.⁶¹

There are a few other infrequently mentioned efforts by the Government of Canada in its leadership role to strengthen CSR initiatives in the extractive industry. One is the creation of the Centre for Excellence in CSR (CfE), which was done as part of the CSR Strategy in 2009.⁶² Situated within the purview of the Canadian Institute of Mining, Metallurgy and Petroleum, the CfE is meant to be a place for developing and disseminating practical CSR tools and information to extractive sector stakeholders.⁶³ Another effort is through the Canadian Trade Commissioner Service (TCS), within Canadian diplomatic missions around the world. The TCS generally provides on-the-ground intelligence and practical advice on foreign markets to help corporations make informed, cost-effective business decisions.⁶⁴ Concerning CSR, the TCS provides information and advice relating to the identification, management and mitigation of environmental and social risks as well as human rights issues.⁶⁵

3.2. Accounting for the implementation of the CSR initiatives

The unpleasant reality about norms, whether legal or non-legal, is that sometimes they do not achieve the desired level of compliance and effect. The case of CSR is not any different. By many accounts, several Canadian mining TNCs have been implicated around the world in behaviours that fall short of the CSR creed. For instance, in the late 1990s through the 2000s, reports concerning Calgary-based TVI Pacific Inc. (TVI) in the Philippines often involved tales of anti-CSR activities. On one occasion, TVI was in the news for harassment and intimidation of indigenous Subanen people for attempting to stop the corporation from conducting exploratory drilling in preparation for opening a mine on their ancestral land.⁶⁶ Violent dispersal, physical assault, harassment, food and economic blockade, illegal arrests, and detention of Subanen people were some of the vices recorded against the corporation.⁶⁷ Further human rights abuses involving TVI related to using paramilitary forces paid for by the corporation to quell the resistance by the Subanen Indigenous People of Canatuan to mining operations on their land.⁶⁸

Similar to TVI’s malfeasance, Barrick Gold, a Toronto-headquartered mining corporation, was reported in May 2013 to have contaminated a local river in northern Chile, which resulted in serious health issues for the local Diaguita Indians.⁶⁹ It was slammed with a record $16.4 million in fines, and its Pascua-Lama mining project was closed by Chile’s environmental agency.⁷⁰ According to the agency, Barrick Gold failed to tell the whole truth when it reported wrongdoings, violated its environmental impact agreement in more than two dozen areas, and committed other breaches of its environmental permit.⁷¹ Unsurprisingly, Barrick Gold’s account of the disaster in its 2013 CSR Report was different. The corporation failed to acknowledge non-compliance with its environmental permit.⁷² As Heidi Wudrick argues, this manner of reporting explains why in the public eyes, CSR is often seen as perfunctory and self-serving.⁷³

Yet, in another case of default on CSR, Toronto-based mining corporation Hudbay Minerals Inc was accused in Guatemala of colluding with private security forces and the local military in human rights abuses, particularly involving the gang rape of 11 Indigenous women and a couple of other attacks that led to one fatality and another man being paralysed.⁷⁴ The incidents were in connection with Hudbay’s efforts in conjunction with a local subsidiary to clear land for the development of an open-pit Phoenix project in El Estor, Guatemala.⁷⁵ The events later triggered a human rights violation lawsuit against Hudbay in Ontario⁷⁶ and became one of the first cases to herald the possibility of future litigation against Canadian mining corporations for extraterritorial torts committed in a foreign country.⁷⁷ In 2009, a similar human rights abuse case was initiated in Ontario against Copper Mesa Mining Corporation of British Columbia by Ecuadorians, alleging that they suffered injuries, death threats and other forms of intimidation from private security forces hired by Copper Mesa.⁷⁸ Although the case was eventually dismissed by the Ontario Court of Appeal,⁷⁹ it nonetheless lends credence to the real exposure of the local people to human rights abuses at the hands of Canadian mining corporations. Violations of human rights were also the key basis of a 2014 action in Garcia v Tahoe Resources Inc.⁸⁰ Tahoe Resources is a corporation incorporated in British Columbia. Private security personnel employed at the corporation’s mine in Guatemala allegedly shot and injured local community protesters. While the case focused mainly on whether British Columbia was the appropriate forum to bring the action, which the Court of Appeal answered in the affirmative,⁸¹ the suit was subsequently settled out of court.⁸²

As damning as the allegations of human rights violations may appear, they are only archetypal of other occurrences that are not in public reports. For instance, Canadian foreign ministry documents that were accessed under freedom of information laws showed data from a Toronto-based activists group, the Justice and Corporate Accountability Project, stating that ‘28 Canadian mining companies and their subsidiaries were linked to 44 deaths, 403 injuries, and 709 cases of criminalization, including arrests, detentions, and charges in Latin America between 2000 and 2014’.⁸³ While it is believed that over 50% of the foreign assets of Canadian mining corporations are located in Latin America and the Caribbean, there are in general over 1000 Canadian mining corporations operating in more than 100 countries,⁸⁴ with the implication that there may be more undocumented corporate malfeasance by these corporations.

The blame for the thriving violent business environment in Third World countries has often gone two ways – pointing to the governments in both the host states and Canada. The lack of economic, political and regulatory will by the government of the host states is often mentioned as the reason why the abuses go unchecked.⁸⁵ Sometimes, the host governments are in joint ventures with the TNCs for the development of minerals in their jurisdictions, thus providing a disincentive for them to act in a way that would hinder access to the minerals.⁸⁶ On the other hand, the Canadian government has often been criticised for not establishing any meaningful regulatory oversight for Canadian mining TNCs doing business abroad.⁸⁷ An activist writing for the Ottawa Citizen in 2020 aptly couched the position in weighty and all-encompassing language as follows:

Canada is increasingly identified with mining companies internationally. While many among the African elite see benefits from foreign mining firms, they are also troubled by the community conflicts and ecological destruction often engendered by these companies as well as their tendency to skirt royalty and tax payments. Mining companies generally operate as though their only concern is making as much money as quickly as possible, yet Canadian diplomats all too often offer their assistance.⁸⁸

The above assertion re-confirms that human rights abuses are not the only visible manifestation of corporate misbehaviour overseas by Canadian mining TNCs. Indeed, environmental destruction and financial impropriety are also among their wrongdoings. And another critique pointedly says that ‘Canada has failed to fully implement promised reforms to hold corporations accountable for abuses committed overseas …'⁸⁹ A statement such as this suggests that the Canadian government may have been making some efforts to deal with the ugly situation but that such efforts might not have been enough. Obviously, those CSR initiatives discussed in section 3 above are some of the responses by the Canadian government. This leads to a consideration of some of the government efforts made beyond CSR initiatives to ensure the good behaviour of Canadian mining TNCs abroad. These considerations are discussed in section 4 below, and focus on the key initiatives in the nature of legal obligations created to deal with issues that were previously dealt with under the CSR paradigm.

With that being said, reports about the operations of Canadian TNCs abroad are not always replete with corporate wrongdoings. Some corporations have brought good tidings to some countries, especially in the area of capacity building of artisanal miners. As part of its CSR initiative, Angkor Gold Corporation of Alberta has been credited with partnering with the Cambodian government to build a strong mining economy in the Asian country through the education of artisanal miners on safe mining procedures that help protect the environment and their families.⁹⁰ The corporation also provides a ready market for artisans by purchasing their gold at the spot price.⁹¹ Similarly, Barrick Gold has partnered with the Peruvian government to develop a process that makes artisanal mining safe, healthy and profitable.⁹² Furthermore, Kinross in Ecuador has assisted the host government in developing a strategy that formalised and facilitated artisanal and small-scale gold mining activity on its concessions – an initiative that is people-driven and ensures that grassroots natives benefit from their resources.⁹³

4. The rise of legal responsibility in the sphere of CSR

There have been efforts made by the Canadian government to create legal responsibilities for corporations in some areas that were initially governed under CSR initiatives, thus shrinking regulatory gaps. However, they focus principally on preventing the involvement of Canadian corporations in corruption, in a bid to project Canada’s global outlook in a positive light and contribute to the international effort to curb the scourge of corruption in resource-rich but poor developing countries. The first of the few such efforts is the enactment in 1998 of the Corruption of Foreign Public Officials Act (CFPOA)⁹⁴ by Parliament. By enacting the CFPOA, and being a member of the OECD, Canada showed full compliance with the OECD’s multilateral treaty, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (also known as the OECD Anti-Bribery Convention).⁹⁵ Note that the OECD’s Anti-Bribery Convention came about as a result of growing realisation of the need to copy the US initiative in enacting the Foreign Corrupt Practices Act of 1977, the world’s first legislation to deal with extraterritorial corrupt practices, particularly foreign bribes.⁹⁶

A very brief legislation comprising 13 sections, which entered into force on 14 February 1999,⁹⁷ the CFPOA makes it a criminal offence to bribe a foreign public official to obtain or retain an advantage in the course of business, the conviction for which carries a custodial term of not more than 14 years.⁹⁸ The CFPOA adopts the Criminal Code of Canada’s definition of a ‘person’,⁹⁹ with the implication that both corporations and individuals may be charged with an offence under the statute; although a convicted corporation would not be subject to a custodial sentence, it can be fined.¹⁰⁰ The 14-year jail term currently the punishment for bribing a foreign public official was introduced when the CFPOA was amended in 2013. Until then, the punishment was a five-year jail term.¹⁰¹ The 2013 amendments also pertain to the elimination of an exception to the key anti-bribery provision that allowed for facilitation payments, the creation of a new offence relating to books and records, and modification of the jurisdiction requirements that would apply to all of the offences in the statute.¹⁰² As Professor Harrington reports,¹⁰³ as of 2018, only four convictions have been secured under the CFPOA, relating to three Alberta-based corporations in the natural resources sector¹⁰⁴ and one Ottawa-based individual working in the technology sector.¹⁰⁵

In 2019, SNC-Lavalin Construction Inc (SLCI), a subsidiary of the Quebec-based SNC-Lavalin Group Inc, was added to the list of Canadian corporations convicted in connection with foreign corruption.¹⁰⁶ The two related corporations, together with another subsidiary of SNC-Lavalin Group Inc, were charged with one count of bribery contrary to section 3(1)(b) of the CFPOA and one count of fraud contrary to section 380(1)(a) of the Criminal Code.¹⁰⁷ The charges related to an alleged payment of bribes to secure an advantage for the corporation in relation to major construction projects in Libya. SLCI eventually pleaded guilty to fraud. The corporation admitted that between 2001 and 2011, $47,689,868 was paid to Saadi Gaddafi who, in exchange for the payments, used his influence as the son of the Libyan leader, Muammar Gaddafi, to secure construction contracts to the benefit of SLCI.¹⁰⁸ As of August 2021, there were three ongoing appeals against convictions and sentences under the CFPOA involving corporations as well as individuals, one of the appeals being lodged by an executive of SNC-Lavalin who was convicted in relation to the bribery in Libya.¹⁰⁹

Overall, the level of convictions may not be impressive statistics-wise after more than 20 years of the CFPOA being in force; however, one cannot discount the potential deterrence factor arising from the availability of the regime.¹¹⁰ In any event, the CFPOA is an introduction of legal responsibility on a subject that, prior to the enactment of the legislation, had been dealt with as part of the CSR initiative, particularly the OECD Guidelines for Multinational Enterprises, which has combating bribery and corruption as one of its core objectives.¹¹¹

The ESTMA¹¹² enacted in 2014 is another Canadian federal effort to prevent and detect the involvement in corruption of Canadian extractive sector corporations. The legislation came into force on 1 June 2015, requiring entities operating in the oil, gas and mineral sectors to disclose details of payments made to domestic and foreign governments.¹¹³ It can be gathered from the ESTMA’s purpose section that the enactment of this key legislation came as a demonstration of Canada’s international commitment to participating in the fight against corruption and enhancing transparency measures in the extractive sector, and further complementing the Criminal Code and the CFPOA in deterring and detecting corruption.¹¹⁴ One key limitation of the ESTMA is that it applies only to entities (which include corporations, partnerships or unincorporated organisations) that meet certain requirements – essentially being a sizeable publicly listed entity.¹¹⁵ The application of the statute is also limited by the fact that only an in-kind or money payment worth more than $100,000 is eligible for reporting.¹¹⁶ A contravention of the reporting obligation under the ESTMA is a summary conviction offence punishable with a fine of not more than $250,000.¹¹⁷

Again, the enactment of the ESTMA is a clear introduction of legal responsibility in a subject upon which global extractive sector industries were initially governed by an important CSR initiative known as the Extractive Industries Transparency Initiative (EITI). EITI is a voluntary initiative established by a coalition of governments, corporations, and civil society organisations to promote the timely reporting of all resource taxes and fees paid to governments by corporations.¹¹⁸ The governments are in turn required to publish their income from the development of natural resources.¹¹⁹ The publicly available information allows citizens to demand that the government account for the management of the resource-generated funds.¹²⁰ EITI thus hinges on a shared belief that the prudent use of natural resources wealth has the potential to provide the basis for sustainable economic growth and development.¹²¹ The EITI idea stemmed from an earlier foreign policy effort by the UK government under former Prime Minister Tony Blair, which eventually became a worldwide programme.¹²² EITI was formally launched in 2002 and was endorsed by the G8 in 2004.¹²³

While the CFPOA and ESTMA focus on corruption and its varieties, other forms of behaviour governed by CSR initiatives, such as violations of human rights and environmental rights, appear to be taken on by victims through extraterritorial torts litigation, for which the Nevsun case has been taken as the pinnacle. However, two new bills currently pending in the Canadian parliament seek to introduce further legal measures in other areas that come under CSR initiatives. Both bills completed their first readings on 29 March 2022. The first, Bill C-262, initiated by Peter Julian (representing New Westminster – Burnaby), seeks to require Canadian TNCs to prevent, address and mitigate human rights abuses throughout their operations abroad.¹²⁴ The bill particularly seeks to provide a statutory right of action in Canada for foreign victims to remedy any loss or damages suffered as a result of violations of their rights by a Canadian TNC, and will be in line with the core principles of the United Nations Guiding Principles on Business and Human Rights.¹²⁵

The other, Bill C-263, introduced by Heather McPherson (representing Edmonton – Strathcona) seeks to establish the Office of the Commissioner for Responsible Business Conduct Abroad, which will have the power to monitor and investigate activities of Canadian corporations abroad with a view to reporting their compliance with international human rights law.¹²⁶ The implication of Bill C-263 is to remodel the office of the Canadian Ombudsperson for Responsible Enterprise (CORE) into the effective corporate watchdog that it was originally intended to be before being stripped of all meaningful powers to investigate allegations of abuse.¹²⁷ As of 17 June 2023, both bills are still pending in the House of Commons.¹²⁸ If they are eventually passed into law, all aspects of corporate behaviours formerly governed under the CSR initiatives will, in the future, attract legal responsibility. But until they are passed, the Nevsun case continues to spearhead and represent the availability of extraterritorial action to redress rights violations by Canadian mining TNCs in place of CSR norms. But what are some of the implications of the decision for CSR in the mining industry going forward? This question and more are discussed in section 5.

5. Thoughts on the CSR landscape in the aftermath of Nevsun’s case

No doubt, the decision in Nevsun’s case is an affirmation by the Supreme Court of Canada of two earlier decisions of the British Columbia Court of Appeal that rejected attempts to dismiss human rights litigation against Canadian corporations on grounds of jurisdiction,¹²⁹ and it finally cements the right of foreign victims of human rights abuse to initiate remedial claims in Canadian courts, which may have been a violation of customary international law.¹³⁰ Essentially, the Canadian jurisdiction may have achieved by case law what is made possible in the United States by the Alien Tort Claims Act.¹³¹ In any event, Nevsun’s case signifies that all three arms of the Canadian government are now in complete unison in appreciating the need that some sort of legal responsibility must be imposed on Canadian TNCs, particularly those in the mining sector, regarding those corporate behaviours that have only previously been informed by CSR initiatives. So, what does this mean and what are its implications going forward? Is CSR no longer of relevance in the life of the TNCs? Has the Nevsun decision influenced policy changes among the mining TNCs?

The incremental encroachment of legal responsibility into the CSR space will not diminish the importance of CSR, which continues to be relevant for the Canadian mining TNCs, because CSR is not only about ensuring respect for the human rights of the local people in the host communities – it is much larger than that. CSR is a broad non-binding governance model that extends to all aspects of corporate malfeasance including or relating to employment and labour standards, sustainability and sound environmental practices, community health and safety, accountability and transparency, and bribery and corruption.¹³² As a significant shift in thinking, Canadian mining executives have recognised that involvement in CSR initiatives is required to ensure the continued acceptance of mining corporations in host communities.¹³³ The mining sector has also acknowledged that there has been ample and growing pressure from other industry stakeholders, such as manufacturers, who have clearly made known their intention to only purchase responsibly sourced metals and minerals for use in their products and facilities.¹³⁴ Impliedly, the CSR consciousness in the mining industry may never wane. The intensity of CSR will continue as usual and every aspect of corporate behaviour regulated by it will continue to be regulated by it without exclusions. But one obvious implication of the currently increasing legal responsibility is that the gate is now wide open for potential litigation in Canadian courts to redress the violations abroad of any actionable right by Canadian TNCs, which may include violations of environmental rights or labour rights. It will not be a surprise to see such cases in Canadian courts in the years ahead.

There are indications that Canadian mining TNCs have recently been making meaningful policy changes and CSR commitments, and Barrick Gold is championing the cause. Although it cannot be said with certainty that the decision in Nevsun’s case is responsible for that, it is reasonable to assume that such may be the case given the unusual coincidence of the policy changes following the delivery of the said decision. Barrick’s Human Rights Report of 2021 indicates that during 2020, Barrick updated its human rights standards including the use of force, and established a new set of Voluntary Principles on Security and Human Rights Standards.¹³⁵ It also developed programmes intended to engage independent human rights experts to help train its employees on human rights standards and to improve the capability of its security leadership to impart deep-rooted training to their local security forces.¹³⁶ According to the report, both programmes have already been implemented successfully in their Tanzanian operations.¹³⁷ Similarly, B2Gold Corporation, in its recent social responsibility policy published in July 2020, affirmed a six-point commitment to creating a comprehensive and sustainable legacy by understanding and managing the social and economic impacts of its operations, which involves, among other aspects, working with the community and supporting social and economic development through investment in the community, local employment and local procurement.¹³⁸ The corporation also affirmed that its human rights approach will comply with the United Nations Guiding Principles on Business and Human Rights as well as the Voluntary Principles on Security and Human Rights.¹³⁹ Further, First Quantum Minerals Ltd, in a 2021 social responsibility strategy signed by its Chairman and Chief Executive Officer, affirmed its commitment to dealing with a variety of CSR issues, but in particular to openly engaging with local communities in the countries where it operates and to respect local customs, indigenous people and cultural diversity.¹⁴⁰ It also states that its approach to security aligns with the Voluntary Principles on Security and Human Rights.¹⁴¹ For its part, Agnico Eagle Mines Ltd, in its 2020 Sustainability Report, made a bold statement to continue its commitment to regulatory requirements for health, safety, environment, social and governance matters – the key aspects of the CSR principles.¹⁴²

Ideally, although it is not expected that the increasing legal responsibility will totally eliminate all corporate violations of human rights and other rights in the local communities, there may be, and there is currently, a heightened awareness that corporations involved in such rights violation can be held accountable through legal action in Canadian courts. Unsurprisingly, a recent report has emerged involving an allegation of impropriety in Burkina Faso by a Vancouver-based mining corporation, called Trevali Mining Corp, the owner of a mine where eight African miners were trapped 500 m underground for more than three weeks.¹⁴³ The report calls for the toughening of Canadian law to ensure greater corporate responsibility by Canadian mining TNCs abroad.¹⁴⁴

The good news is that Nevsun’s case has paved the way for the use of extraterritorial litigation to enforce accountability for this manner of corporate malfeasance where CSR initiatives have been failing. But despite the negative portrayal of Canadian mining TNCs in various reports,¹⁴⁵ from the global mining industry’s perspective, Canada will continue to be viewed as a nation committed to strengthening regulations around its mining TNCs, especially with respect to their operations overseas, where resource-rich countries are ever willing to open their borders to Canadian TNCs.

6. Conclusions

CSR has a prominent place in the affairs of Canadian mining TNCs, and has been a critical issue factored into their strategies and relationships with local people in host communities overseas where they have operations. Over the years, these corporations have been enjoined to be of good behaviour through various voluntary CSR initiatives. In recent times, efforts have been made by the government of Canada, through legislative enactments, to introduce legal responsibility of some sort to some of the regulatory spheres where CSR initiatives already exist.

By making it now a settled position of law that foreign victims of human rights may seek redress in Canadian courts, the Supreme Court of Canada’s decision in Nevsun’s case has become an important accretion, coming as it does from the judicial arm of government, of legal responsibility for Canadian mining TNCs on a terrain that was only being governed by CSR approaches. While this may appear to represent a diminution of the sphere of CSR, the truth is that CSR will continue to be as relevant as ever. Canadian TNCs will continue to use CSR as a means to gain acceptance in local communities, but may now also be potentially held legally responsible through extraterritorial litigation in Canada, when their activities run afoul of their own CSR programme and violate the rights of the local people in their host countries.

At the end of the day, legal responsibility strengthens CSR initiatives for the Canadian TNCs. Indeed, as far as strengthening corporate accountability is concerned, for the Canadian mining TNCs, it is tantamount to a case of ‘charity begins at home’, because actions taken so far by Canada all point to the fact that as a mining superpower it wants its TNCs to maintain in their foreign operations the same manner of good behaviour that is required of them at home.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 2020 SCC 5

2 Ibid at para 5

3 Ibid at para 4

4 Ibid

5 Ibid at para 7–10

6 Yvette Brend, ‘Landmark Settlement Is a Message to Canadian Companies Extracting Resources Overseas: Amnesty International’ (23 October 2020, CBC News) <www.cbc.ca/news/canada/british-columbia/settlement-amnesty-scc-africa-mine-nevsun-1.5774910>. See also Anne Bucher, ‘Landmark Settlement Reached in Slavery Lawsuit Against Nevsun’ (26 October 2020), Top Class Actions: Helping Right Consumer Wrongs <https://ca.topclassactions.com/lawsuit-settlements/lawsuit-news/landmark-settlement-reached-in-slavery-lawsuit-against-nevsun>

7 Jeremy Zullow, ‘Canadian Litigation for Violations of Customary International Law: Questions Remaining after Nevsun v Araya’ (2022) 80(1) U Toronto Fac L Rev 122; Pete Heidepriem, ‘Indigenous Rights, Investor-State Disputes, and Canadian Law’ (2023) 68(1) SD L Rev 51 at 71; Jason Haynes, ‘The Confluence of National and International Law in Response to Multinational Corporations’ Commission of Modern Slavery: Nevsun Resources Ltd v Araya’ (2022) 8(4) J Human Trafficking 441; Peter Muchlinski, ‘Corporate Liability for Breaches of Fundamental Human Rights in Canadian Law: Nevsun Resources Limited v Araya’ (Spring 2020) 1(3) Amicus Curiae, Series 2, 505; Malcolm Rogge, ‘Nevsun puts Canada’s Corporate Decision Makers in the Human Rights Zone’ CRI Working Paper No 70 (19 March 2020, Harvard Kennedy School) <www.hks.harvard.edu/sites-default/files/centers/mrcbg/programs/cri/files/CRI_70.pdf; James Yap, ‘Nevsun Resources Ltd v Araya: What the Canadian Supreme Court Decision Means in Holding Canadian Companies Accountable for Human Rights Abuses Abroad’ (16 March 2020, Business & Human Rights Centre) <www.business-humanrights.org/en/latest-news-nevsun-resources-ltd-v-araya-what-the-canadian-supreme-court-decision-means-in-holding-canadian-companies-accountable-for-human-rights-abuses-abroad/>; and Jolane T. Lauzon, ‘Araya v Nevsun Resources: Remedies For Victims of Human Rights Violations Committed by Canadian Mining Companies Abroad’ (2018) 31(1) Quebec J Int’l L 143

8 S.C. 2014, c. 39, s. 376 [ESTMA]

9 This paper explores the implications of the Nevsun decision on the CSR landscape for Canadian mining TNCs; for the global implications of the decision on CSR and transnational human rights litigation, see Vincent-Joel Proulx, ‘To Boldly Go Where No Court Has Gone before: Canada Paves the Way for Transnational Litigation against Corporations for Human Rights Abuses?’ (2023) 38(1) Conn J Int’l L 34

10 Yousuf Aftab, ‘The Intersection of Law and Corporate Social Responsibility: Human Rights Strategy and Litigation Readiness for Extractive-Sector Companies’ (2014) 60 RMMLI 19-1. See also Alexander Dahlsrud, ‘How Corporate Social Responsibility Is Defined: an Analysis of 37 Definitions’ (2008) 15(1) Corp Soc Resp & Envtl Mgmt 1 at 4. For other acceptable formulations of the CSR concept, see also Kevin O’Callaghan, ‘Corporate Social Responsibility: A Framework for Understanding the Legal Structure’ (2011) 57 RMMLI 17A-1; Ramon Mullerat, ed., Corporate Social Responsibility: The Corporate Governance of the 21 Century (Kluwer 2005); Michael Kerr, Richard Janda and Chip Pitts, Corporate Social Responsibility: A Legal Analysis (LexisNexis 2009) at 31

11 See Dodge v Ford Motor Company, 204 Mich 459, 170 NW 668, 3 ALR 413 (1919) at 469 (where Mr Ford was reported making a declaration regarding a plan to spread corporate benefit across a wide spectrum of employees who were representative of the wider community). This articulation of CSR is also underlined in a statement by C Gonthier, ‘Forward’ in Kerr, Janda and Pitts (n 10), at vii.

12 See BCE Inc v 1976 Debentureholders, [2008] 3 SCR 560 at paras 66, 81 and 82 (emphasising that a consideration of the impact of corporate decisions on the interests of all stakeholders of a corporation is a reflection of being a good corporate citizen)

13 Barry Barton, Canadian Law of Mining, 2nd ed (LexisNexis, 2019) at 739–40

14 See Marcel Kordos and Sergej Vojtovic, ‘Transnational Corporations in the Global World Economic Environment’ (2016) 230 Social & Behavioral Sciences 150 at 151

15 See eg Joe W. Pitts III, ‘The First UN Social Forum: History and Analysis’ (2002) 31(2) Denver J Int’l L & Pol’y 297 at 299; see also Igor Fuks, ‘Sosa v Alvarez-Machain and the Future of ATCA Litigation: Examining Bonded Labour Claims and Corporate Liability’ (2006) 106 Columbia L Rev 112 at 117 note 37 (arguing that developing countries are reluctant to bring TNCs under control because of their power over the flow of capital as well as jobs that the TNCs bring and the ease with which either or both can be moved in a relatively short period of time in the event of a country falling out of favour with the TNCs)

16 John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights (WW Norton & Co 2013) at xii

17 Hevina S Dashwood, ‘Canadian Mining Companies and Corporate Social Responsibility: Weighing the Impact of Global Norms’ (2007) 40(1) Canadian J Pol Sci 129 at 130

18 Barton (n 13) at 739

19 Paul Kapelus, ‘Mining, Corporate Social Responsibility and the “Community”: The Case of Rio Tinto, Richards Bay Minerals and the Mbonambi’ (2002) 39 J Bus Ethics 275 at 276

20 European Parliament, ‘BRIEFING: Towards a Binding International Treaty on Business and Human Rights’ (European Parliament) <www.europarl.europa.eu/RegData/etudes/BRIE/2018/630266/EPRS_BRI(2018)630266_EN.pdf> accessed 17 June 2023, at 4; see also Adam Vaughan, ‘Nigerian Oil Pollution Claims Against Shell Cannot Be Heard in UK, Court Rules’ The Guardian (26 January 2017) <www.theguardian.com/business/2017/jan/26/nigerian-oil-pollution-shell-uk-corporations>

21 See the following notable works: Jim Cooney, ‘Reflections on the 20th Anniversary of the Term “Social Licence”’ (2017) 35(2) J Energy & Nat Resources L 197; Don C Smith and Jessica M Richards, ‘Social License to Operate: Hydraulic Fracturing-Related Challenges Facing the Oil & Gas Industry’ (2015) 1 Oil & Gas, Nat Resources & Energy J 81 at 91; Ian Thomson and Robert G Boutilier, ‘Social License to Operate’ in Peter Darling (ed), SME Mining Engineering Handbook, 3rd ed (Society for Mining, Metallurgy, and Exploration 2011) 1779; and Robert G Boutilier, ‘Frequently Asked Questions About the Social Licence to Operate’ (2014) 32(4) Impact Assessment and Project Appraisal 263

22 Barton (n 13) at 739

23 Ibid

24 See eg Jason Prno and D Scott Slocombe, ‘Exploring the Origins of “Social License to Operate” in the Mining Sector: Perspectives from Governance and Sustainability Theories’ (2012) 37 Resources Pol’y 346; David Humphrey, The Remaking of the Mining Industry (Palgrave Macmillan 2015) at 30; John R Owen and Deanna Kemp, ‘Social Licence and Mining: A Critical Perspective’ (2013) 38 Resources Pol’y 29; Kristen van de Biezenbos, ‘The Rebirth of Social Licence’ (2019) 14(2) JSDLP 153; Karin Buhmann, ‘Public Regulators and CSR: The “Social Licence to Operate” in Recent United Nations Instruments on Business and Human Rights and the Juridification of CSR’ (2016) 136 J Bus Ethics 699; Nigel Bankes, ‘The Social Licence to Operate: Mind the Gap’ (ABlawg.ca, 24 June 2015) <https://ablawg.ca/2015/06/24/the-social-licence-to-operate-mind-the-gap>; John Morrison, The Social License: How to Keep Your Organization Legitimate (Palgrave Macmillan 2014); Jennifer Noel Costanza, ‘Mining Conflict and the Politics of Obtaining a Social License: Insight from Guatemala’ (2016) 79 World Dev 97; Kathleen M Wilburn and Ralph Wilburn, ‘Achieving Social Licence to Operate Using Stakeholder Theory’ (2011) 4(2) J Int’l Bus Ethics 3; Jinhua Cui, Hoje Jo and Manuel G Velasquez, ‘Community Religion, Employees, and the Social Licence to Operate’ (2016) 136 J Bus Ethics 775

25 Barton (n 13) at 740

26 See eg Joshua P Eaton, ‘The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment’ (1997) 15(1) BU Int'l L J 261 at 274–75 (discussing how Shell’s failure to comply with the Agenda 21 of the United Nations Conference on Environment and Development regarding Shell’s activities in the Niger Delta attracted no legal sanctions).

27 Barton (n 13) at 740

28 Mary Louise McAllister and Cynthia Jaqueline Alexander, ‘The Whitehorse Mining Initiative’ (Report Presented at the University of Waterloo, 31 July 1999) <https://idl-bnc-idrc.dspacedirect.org/bitstream/handle/10625/27174/118549.pdf?sequence=1> at 3

29 Ibid

30 The name was chosen because the initiative was proposed by MAC at a September 1992 Conference of Canadian Mines Ministers in Whitehorse, Yukon.

31 McAllister and Alexander (n 28) at 1

32 Government of Canada, ‘Whitehorse Mining Initiative’ <www.nrcan.gc.ca/science-data/science-research/earth-sciences/earth-sciences-resources/earth-sciences-federal-programs/whitehorse-mining-initiative/8698> accessed 18 May 2021

33 See Patricia Fitzpatrick, Alberto Fonseca and Mary Louise McAllister, ‘From the Whitehorse Mining Initiative Towards Sustainable Mining: Lessons Learned’ (2011) 19 Journal of Cleaner Production 376

34 See the Whitehorse Mining Initiative Leadership Council Accord (Final Report, October 1994), at 7 and 9, <https://commdev.org/pdf/userfiles/files/721_file_WMI_Accord_en.pdf> [hereafter The Accord]

35 Northern Miner Staff, ‘Whitehorse Mining Initiative Hailed a Success’ (The Northern Miner, 26 September 1994) <https://stage.northernminer.com/whitehorse-mining-initiative-hailed-a-success>

36 The Accord (n 34) at 14

37 Ibid at 27

38 Prospectors & Developers Association of Canada, ‘e3 Plus: A Framework for Responsible Exploration' Prospectors & Developers Association of Canada <www.pdac.ca/priorities/responsible-exploration/e3-plus> accessed 4 May 2022

39 Ibid

40 Barton (n 13) at 740; see also Mines, Minerals and Sustainable Development Initiative, Breaking New Ground: Mining, Minerals and Sustainable Development (International Institute for the Environment and Development/Earthscan, 2002)

41 Formally known before as the federal Department of Industry, it is now known since the beginning of Justin Trudeau's administration in 2015 as Innovation, Science and Economic Development Canada, that is, the Department of Innovation, Science and Economic Development (ISED). The mission of ISED is to foster a growing, competitive, knowledge-based Canadian economy, while its mandate is to help make Canadian industry more productive and competitive in the global economy. See Government of Canada, ‘ARCHIVED – Industry Canada – Report’ Treasury Board of Canada Secretariat www.tbs-sct.gc.ca/rpp/2012-2013/inst/dus/dus01-eng.asp#sec11 accessed 19 May 2021

42 Government of Canada, ‘Corporate Social Responsibility (CSR): An Implementation Guide for Canadian Business (2014)’ Industry Canada <www.ic.gc.ca/eic/site/csr-se.nsf/vwapj/CSRImplementationGuide.pdf/$file/CSRImplementationGuide.pdf> accessed 19 May 2021

43 Ibid at 4

44 Ibid at 7

45 Ibid

46 Ibid at 8

47 The standards include Doing Business the Canadian Way: A Strategy to Advance CSR in Canada’s Extractive Sector Abroad; Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises; Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas; Global Reporting Initiative Guidelines; Voluntary Principles Security and Human Rights; International Finance Corporation (IFC) Performance Standards; Equator Principles; Extractive Industries Transparency Initiative (EITI); ISO 26000; United Nations Global Compact; United Nations Guiding Principles on Business and Human Rights; International Labour Organization (ILO) Standards; and ILO Tripartite Declaration.

48 Government of Canada, ‘Corporate Social Responsibility (CSR) Checklist for Canadian Mining Companies Working Abroad’ <www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/mineralsmetals/pdf/Corporate%20Social%20Responsibility%20Checklist_e.pdf> accessed 20 May 2021, at 5

49 Ibid at 5 and 8

50 Ibid at 7

51 Ibid at 54

52 Ibid at 58–62

53 Ibid at 64

54 Government of Canada, ‘Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector’ (Global Affairs Canada, March 2009) <www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/csr-strat-rse-2009.aspx?lang=eng>

55 Government of Canada, ‘Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad’ <www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/csr-strat-rse.aspx?lang=eng> accessed 22 May 2021 [hereafter Doing Business the Canadian Way]

56 Ibid at 3 (the main benefit is that corporations doing business in compliance with CSR initiatives are often better positioned to succeed in the long term and to contribute to a more stable and prosperous environment for all affected stakeholders).

57 Ibid at 6

58 Ibid at 4

59 Government of Canada, ‘Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor: About Us’ Global Affairs Canada <www.international.gc.ca/csr_counsellor-conseiller_rse/About-us-A-propos-du-bureau.aspx?lang=eng> accessed 22 May 2021

60 Ibid

61 Government of Canada, ‘Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor’ Global Affairs Canada <www.international.gc.ca/csr_counsellor-conseiller_rse/index.aspx?lang=eng> accessed 22 May 2021

62 Doing Business the Canadian Way (n 55) at 5

63 Ibid

64 Ibid

65 Ibid

66 MiningWatch Canada, ‘MiningWatch Responds to Request for Help from Philippines – TVI Repressing Subanen People’ (27 October 1999) <https://miningwatch.ca/news/1999/10/27/miningwatch-responds-request-help-philippines-tvi-repressing-subanen-people>

67 Ibid

68 MiningWatch Canada, ‘Increased Human Rights Abuses Around TVI Pacific's Philippines Operation’ (7 July 2003) <https://miningwatch.ca/news/2003/7/7/increased-human-rights-abuses-around-tvi-pacifics-philippines-operation#PIPLinks>

69 The Canadian Press, ‘Canadian Mine Giant Barrick Fined a Record $16.4M in Chile’ (CBC News, 25 May 2013) <www.cbc.ca/news/world/canadian-mine-giant-barrick-fined-a-record-16-4m-in-chile-1.1308099>

70 Ibid

71 Ibid; see also Vanessa Lu, ‘Barrick Hit with $16-Million Fine over Pascua-Lama Gold Mine’ (Toronto Star, 24 May 2013) <www.thestar.com/business/2013/05/24/barrick_hit_with_16million_fine_over_pascualama_gold_mine.html>

72 Heidi Wudrick, ‘Corporate Social Responsibility in the Canadian Mining Sector: Rhetoric, Ethics, and the Economy’ (MA thesis, Simon Fraser University, 2015) [unpublished] at 1

73 Ibid at 3. See also, Martin Brueckner, ‘The Civic Virtue of Developmentalism: On the Mining Industry’s Political Licence to Develop Western Australia’ (2014) 32(4) Impact Assessment and Project Appraisal 315 at 316

74 Joseph Kirschke, ‘HudBay Minerals Meets a Legacy of Guatemalan Violence in Canadian Court', (2013) 11 Engineering and Mining Journal 129

75 Ibid

76 Choc v Hudbay Minerals Inc. [2013] OJ No 3375, 2013 ONSC 1414 (Ont. SCJ) This case is still ongoing.

77 Dwight Newman, Mining Law of Canada (LexisNexis 2018) at 218

78 Piedra v Copper Mesa Mining Corp. [2010] OJ No 2239, 2010 ONSC 2421

79 Piedra v Copper Mesa Mining Corp., 2011 ONCA 191

80 [2015] BCJ No 2431, 2015 BCSC 2045 (BCSC)

81 [2017] BCJ No 117, 2017 BCCA 39 (BCCA)

82 Gabriel Friedman, ‘Big Win for Foreign Plaintiffs as Pan American Settles Guatemala Mine Case’ (Financial Post, 31 July 2019) <https://financialpost.com/commodities/mining/big-win-for-foreign-plaintiffs-as-pan-american-settles-guatemala-mine-case>. For more on reported allegations of human rights abuse by Canadian mining TNCs in Latin America, see Shin Imai, Leah Gardner & Sarah Weinberger, ‘The Canada Brand: Violence and Canadian Mining Companies in Latin America’ (1 December 2017) Osgoode Legal Studies Research Paper No 17/2017, <http://dx.doi.org/10.2139/ssrn.2886584>

83 Chris Arsenault, ‘Canada Not Walking the Talk on Its Miners’ Abuses Abroad, Campaigners Say’ (Mongabay Series: Land Rights and Extractives, 24 July 2020), <https://news.mongabay.com/2020/07/canada-not-walking-the-walk-on-its-miners-abuses-abroad-campaigners-say>

84 Shin Imai, Bernadette Maheandiran and Valerie Crystal, ‘Accountability Across Borders: Mining in Guatemala and the Canadian Justice System’ (2012) Comparative Research in Law and Political Economy, Research Papers, No 26/2012 <http://digitalcommons.osgoode.yorku.ca/clpe/28> at 3; see also Susana C Mijares Peña, ‘Human Rights Violations by Canadian Mining Companies Abroad: Choc v Hudbay Minerals Inc’, (2014) 5(1) W J Legal Stud [i] at 1

85 Martin-Joe Ezeudu, ‘Revisiting Corporate Violations of Human Rights in Nigeria’s Niger Delta Region: Canvassing the Potential Role of the International Criminal Court’ (2011) 11(1) Afr Hum Rts L J 23 at 44. See also Kenneth Omeje, ‘Oil Conflict in Nigeria: Contending Issues and Perspectives of the Local Niger Delta People’ (2005) 10(3) New Political Economy 321 at 328; and Miriam Cohen, ‘Doing Business Abroad: A Review of Selected Recent Canadian Case-Studies on Corporate Accountability for Foreign Human Rights Violations’ (2020) 24(10) The Int’l J Hum Rts 1499 at 1499

86 Ezeudu (n 85) at 38

87 Cohen (n 85) at 1501

88 Bianca Mugyenyi, ‘Mugyenyi: Why Black and Brown Countries May Have Rejected Canada’s Security Council Bid’ (Ottawa Citizen, 18 June 2020) <https://ottawacitizen.com/opinion/mugyenyi-why-black-and-brown-countries-may-have-rejected-canadas-security-council-bid>

89 Arsenault (n 83)

90 Government of Canada, ‘CSR Abroad – Artisanal Mining’, Government of Canada <www.nrcan.gc.ca/science-data/science-research/earth-sciences/earth-sciences-resources/earth-sciences-federal-programs/csr-abroad-artisanal-mining/17235> accessed 8 May 2022; see also Angkor Gold Corporation (2021) 14(8) The Canadian Business Journal, <www.cbj.ca/angkor_gold_corporation>

91 Government of Canada, ‘CSR Abroad – Artisanal Mining’ (n 90)

92 Ibid

93 Ibid

94 SC 1998, c. 34 [CFPOA]

95 17 December 1997, OECD Doc DAFFE/IME/BR (97)20 (1997), 37 ILM 1 (1998) (entered into force 15 February 1999, ratified by Canada 17 December 1998); see also Joanna Harrington, ‘Addressing the Corruption of Foreign Public Officials: Developments and Challenges within the Canadian Legal Landscape’ (2014) 56 Canadian Yearbook of International Law 98 at 100; and Lane Foster, ‘Corruption Convention and Canadian Law: Responses to OECD Criticism’ (2014) Asper Rev Int’l Bus & Trade L 251, for more review of the CFPOA

96 Harrington (n 95) at 100

97 A Timothy Martin, ‘Canadian Law on Corruption of Foreign Public Officials’ (June 1999) 10(2) National Journal of Constitutional Law 189 at 192

98 CFPOA (n 94) s 3

99 Ibid, s 2 adopts the meaning of ‘person’ as defined in section 2 of the Criminal Code. This makes it clear that references to ‘person’ include an organisation, which in turn is defined widely under the Criminal Code to include a body corporate.

100 Harrington (n 95) at 109

101 Newman (n 77) at 203–204. The amendment was accomplished by the enactment of the Fighting Foreign Corruption Act, SC 2013, c 26

102 Ibid

103 Harrington (n 95) at 101

104 R v Watts and Hydro-Kleen Systems Inc [2005] AJ No 568 (QB); R v Niko Resources Ltd [2011] AJ No 1586, 101 WCB (2d) 118 (Alta QB); R v Griffiths Energy International Inc [2013] AJ No 412 (QB)

105 R v Karigar, 2013 ONSC 5199, 108 WCB (2d) 210, appeal dismissed 2017 ONCA 576, application for leave to appeal to the Supreme Court of Canada dismissed 15 March 2018, No 37784. See R v Karigar, 2014 ONSC 3093, 113 WCB (2d) 373, regarding the sentencing.

106 Global Affairs Canada, Canada’s Fight against Foreign Bribery: Twenty-first Annual Report to Parliament (September 2019–August 2020) <www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/corr-21.aspx?lang=eng> accessed 10 May 2022

107 Ibid

108 Ibid

109 Government of Canada, Annual Report on Canada’s Fight against Foreign Bribery to Parliament 2020–2021: Twenty-Second Annual Report to Parliament <www.international.gc.ca/transparency-transparence/bribery-corruption/2020-2021.aspx?lang=eng> accessed 10 May 2022

110 Harrington (n 95) at 101

111 OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, 2023 Editions, <https://doi.org/10.1787/81f92357-en> accessed 22 July 2023, Part VII, at 39.

112 ESTMA (n 8)

113 Harrington (n 95) at 122. The payments as defined in section 2 of the ESTMA include (a) taxes, other than consumption taxes and personal income taxes; (b) royalties; (c) fees, including rental fees, entry fees and regulatory charges as well as fees or other consideration for licences, permits or concessions; (d) production entitlements; (e) bonuses, including signature, discovery and production bonuses; (f) dividends other than dividends paid as ordinary shareholders; (g) infrastructure improvement payments; or (h) any other prescribed category of payment.

114 ESTMA (n 8), s 6

115 Ibid, s 8

116 Ibid, s 9(1) and (2)

117 ESTMA (n 8), s 24. For further analysis and perspective on ESTMA, see Dwight Newman and Kaitlyn S Harvey, Stepping Into the Sunshine Without Getting Burned: The Extractive Sector Transparency Measures Act (ESTMA) and Aboriginal Communities (Macdonald-Laurier Institute, June 2016)

118 Virginia Haufler, ‘Disclosure as Governance: The Extractive Industries Transparency Initiative and Resource Management in the Developing World’ (2010) 10(3) Global Environmental Politics 53 at 54

119 Ibid

120 Ibid

121 Extractive Industries Transparency Initiative, Strategy: The EITI Principles, May 2003, EITI <https://eiti.org/documents/eiti-principles> accessed 11 May 2022

122 Haufler (n 118) at 53

123 Harrington (n 95) at 123

124 Parliament of Canada, C-262, 44th Parliament, 1st session, 22 November 2021, <www.parl.ca/legisinfo/en/bill/44-1/c-262> [hereafter Parliament of Canada 1]

125 Ibid

126 Parliament of Canada, C-263, 44th Parliament, 1st session, 22 November 2021 <www.parl.ca/legisinfo/en/bill/44-1/c-263> [hereafter Parliament of Canada 2]

127 MiningWatch Canada, ‘Two Bills Tabled in Parliament Today Pave Way Towards Corporate Accountability in Canada’ New Release, 29 March 2022, MiningWatch Canada <https://miningwatch.ca/news/2022/3/29/two-bills-tabled-parliament-today-pave-way-towards-corporate-accountability-canada#>

128 Parliament of Canada 1 (n 124); and Parliament of Canada 2 (n 124) (both websites were visited last on 17 June 2023, with the status of the bills unchanged). See also Shawn Katz, ‘Parliament Should Force Corporations to Put People over Profit’ (17 February 2023), Canada’s National Observer <www.nationalobserver.com/2023/02/14/opinion/bill-c262-parliament-corporations-people-profit> (a recent news report discussing some of the news things that Bill C-262 would bring, such as imposing a broad range of human rights obligations on Canadian companies, requiring them to prevent, address and remedy social and environmental harms that arise from their business activities and relationships abroad)

129 Yap (n 7)

130 Suzanne Spears, Andrew Denny and Olga Owczarek, ‘Nevsun Resources Ltd v Araya: Canadian Supreme Court Confirms that Eritreans Can Seek Legal Redress Against Canadian Parent Company for Alleged Violations of Customary International Law’ (11 May 2020) Allen & Overy LLP <www.allenovery.com/en-gb/global/news-and-insights/publications/nevsun-resources-ltd-v-arayacanadian-supreme-court-confirms-that-eritreans-can-seek-legal-redress-against-canadian-parent-company>

131 Codified in 1948 as 28 USC § 1350. See Fuks (n 15) at 118–119, discussing a case where the application of the ATCA led to corporate liability. The case is Doe v Unocal Corp with the following citations from Fuks: 963 F. Supp. 880 (CD Cal. 1997) (denying in part and granting in part motion to dismiss), rev'd in part, 110 F. Supp. 2d 1294 (CD Cal. 2000) (granting summary judgment), rev'd in part and remanded sub nom. Doe I v Unocal, 395 F.3d 932 (9th Cir. 2002), reh'g granted en banc, 395 F.3d 978 (9th Cir. 2003), appeals dismissed per stipulation sub nom. John Doe I v Unocal, 403 F.3d 708 (9th Cir. 2005). See also Wiwa v Royal Dutch Shell, 226 F.3d 88 (2000); Sosa v Alvarez-Machain 542 US 692 (2004), 331 F.3d 604 (rev’d). However, there seems to be a new trend of ‘presumption against extraterritoriality’ under the Alien Tort Claims Act in the US jurisprudence. See Alreem Kamal, ‘The Alien Tort Statute & the Contemporary International Legal Order: Is the Retention of the Presumption Against Extraterritoriality Justified?’ (2022) 54(3) NYU J Int’l L & Pol 1089

132 Industry Canada, ‘Corporate Social Responsibility (CSR): An Implementation Guide for Canadian Businesses (2014)’ Industry Canada <https://ised-isde.canada.ca/site/corporate-social-responsibility/sites/default/files/attachments/CSRImplementationGuide.pdf> accessed 15 May 2022 at 7

133 Dashwood (n 17) at 135

134 Mining Sector Performance Report 2008–2017: Energy and Mines Ministries’ Conference, Cranbrook, British Columbia, July 2019 <www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/emmc/pdf/2019/MiningSectorPerformanceReport2008-2017_en.pdf> accessed 14 May 2022 at 4

135 Barrick, ‘Press Release: Barrick Publishes Human Rights Report’ (Barrick News, 10 December 2021) <https://s25.q4cdn.com/322814910/files/doc_news/2021/12/Barrick_Publishes_Human_Rights_Report.pdf>

136 Ibid

137 Ibid

138 B2GOLD, ‘Social Responsibility and Human Rights Policy: Effective 21 July 2020’ B2GOLD <www.b2gold.com/_resources/esg/B2Gold-Social-Res-Human-Rights-Policy-21-July-2020.pdf> accessed 16 May 2022

139 Ibid

140 First Quantum Minerals Ltd ‘Social Responsibility Strategy’ First Quantum Minerals Ltd <https://s24.q4cdn.com/821689673/files/doc_downloads/policies/2021/Social-Responsibility-Strategy-May-2021-FINAL.pdf> accessed 16 May 2022

141 Ibid

142 Agnico Eagle Mines Limited, ‘Adaptable, Sustainable, Accountable: Sustainability Report 2022’ Agnico Eagle <https://s21.q4cdn.com/374334112/files/doc_downloads/sd_reports /2020/2020-SustainabilityReportEnglish.pdf> accessed 18 May 2022

143 Amanda Follett Hosgood, ‘African Mine Disaster Turns Spotlight on Canadian Mining Firms’ (10 May 2022), The Tyee <https://thetyee.ca/News/2022/05/10/African-Mine-Disaster-Spotlight-Canadian-Mining-Firms>

144 Ibid

145 Catherine Coumans, ‘Canada’s Mining Dominance and Failure to Protect Human Rights’ (29 March 22022), MiningWatch Canada <https://miningwatch.ca/sites/default/files/backgrounder_canadasroleinminingabuse.pdf>