Legal Cover
Third in the substantial advantages Canada provides to the world’s extractive industry is legal protection for mining firms. Canada can be relied upon to provide, unofficially, full political and legal cover to companies registered in its jurisdiction even when these companies are facing well-established and documented allegations of abuse. Many documents, including those produced by two United Nations agencies, the UN High Commissioner for Human Rights and the UN Committee on the Elimination of Racial Discrimination (CERD),91 deal with the exceptionally serious impact of the extractive industry in the countries of the South.
A report from the United Nations High Commissioner for Human Rights on the violation of basic human rights in the Congo between 1993 and 2003 implicates transnational mining companies in these violations.92 During this decade, the simmering conflict between the rebel forces of the Alliance of Democratic Forces for the Liberation of the Congo, backed by Uganda and Rwanda, and the regime of long-time dictator Joseph Mobutu flared into open hostility. Yet rebel leader Laurent-Désiré Kabila was able to rely on support from the mining companies to build up his war chest. “During the AFDL’s advance on Kinshasa in 1996, before it had even formed a government, Kabila was allocating mining concessions to private companies. Many of these transactions were conducted illegally.”93
Employees of Anvil Mining are among the Canadian individuals and corporations mentioned in the report. “An Australian-Canadian mining company was accused of supplying the army with logistics and transport during its military operation.”94 The military trial that found them not guilty remains controversial.
In 1998, Kabila arbitrarily reviewed the mining concessions he had granted. For example, the 82,000-square kilometre exploration concession which former president Joseph Mobutu had given Barrick Gold in 1996 – a contract countersigned by Kabila soon after he overthrew the government and became president95 – was suddenly reduced to 55,000 square kilometres.96
Kabila’s dissatisfied political allies, Rwanda and Uganda, were frustrated by his inconsistency and there were attempts to overthrow him, allegedly with the help of commercial partners; the allegations often mention the Canadian junior American Mine Fields Inc. (AMFI), now known as Adastra, which was later acquired by First Quantum Minerals.97 The war resumed, and among its beneficiaries were private corporations able to profit from a world of chaos.
The 2010 UN High Commissioner for Human Rights report notes: “During the second war, foreign companies rarely controlled the source of the minerals or other goods they were purchasing, and sometimes paid the armed groups directly ... In a number of cases, foreign or multinational companies were directly involved in negotiations with perpetrators of serious human-rights abuses, paying armed groups or providing them with facilities or logistics in order to exploit natural resources.”98 As early as 2002, however, a report by the UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo included a list of companies in violation of OECD codes of behaviour.99 The report invited certain jurisdictions, Canada being implicitly among them, to investigate the activities of multinational corporations and mineral exploration firms in the African Great Lakes war zone between 1996 and 2003. The number of dead as a direct or indirect consequence of this war is estimated at five million people.100
In their report, the UN experts lay particular emphasis on the short-term exploitation of resources in wartime, stating that “the Governments of the countries where the individuals, companies, and financial institutions that are systematically and actively involved in these activities are based should assume their share of the responsibility. The Governments have the power to regulate and sanction those individuals and entities. They could adapt their national legislation as needed to effectively investigate and prosecute the illegal traffickers.”101 In the same paragraph, they refer to OECD guidelines for multinational corporations, which “offer a mechanism for bringing violations of them by business enterprises to the attention of home Governments, that is, Governments of the countries where the enterprises are registered.” The UN experts conclude: “Governments with jurisdiction over these enterprises are complicit themselves when they do not take remedial measures.”102
Canada is implicitly targeted by this last assertion. Five companies identified as Canadian − First Quantum Minerals, Harambee, International Panorama Resources, Melkior, and Tenke − are named in the report as having violated OECD guidelines on corporate ethics; four other companies established in Canada are also named in connection with entities they control elsewhere in the world. Thus AMFI and Kinross are identified as American, Banro is presented as South African, and the Lundin Group is identified with a tax haven (Bermuda).103
From a wider perspective, the UN experts help us understand that the OECD guidelines provide a relevant basis for criticizing the role of any other Canadian corporation that does business in the region. Though it cannot be presumed that they have actively and systematically exploited minerals – only an exhaustive investigation could tell us if this were the case – the very fact of economic partnerships with powers involved in hostilities in the region places them in potential violation of the principles set forth in these reports. The OECD holds that a company must “refrain from seeking or accepting exemptions not contemplated in the statutory or regulatory framework related to environmental, health, safety, labour, taxation, financial incentives, or other issues” and “abstain from any improper involvement in local political activities.”104 In a context of total war such as the one prevailing in the Congo, no regulatory framework of this kind could be enforced, and conditions for doing business in an ethical manner were entirely absent.
The UN reports led to parliamentary investigations in the Congo,105 in the United Kingdom,106 and in Belgium,107 and have been the basis of countless academic or journalistic works of investigation. In fact, an avalanche of public documents justifies serious questions about the role of Canadian actors in the Congo during this period.108
If Canada had even the slightest intention of following UN recommendations and regulating its industry, by the mid-1990s – which is when war began in the Congo – it would have found in the points listed above good reasons to investigate extractive sector companies registered within its jurisdiction, especially since the minimal ethical guidelines suggested by the OECD assume the existence of a regulatory structure and of local government.109 Canada had even more reason to take an interest in these companies when, at the end of the bloody conflicts of 1996 to 2003, a Congolese commission was set up to review mining contracts signed during the war; this body criticized all of the contracts between the Congo government and transnational corporations that it examined during its first round of analysis.110 (The Congolese authorities later accepted a number of these contracts, sometimes because they lacked information about the commercial or political involvement of the actors in the circumstances of the conflict.) However, even though several of the corporations cited by the commission were Canadian, “the Canadian government didn’t investigate.”111 True to form, Canada’s political “authorities” chose to adopt a low profile, opened no investigation, and abstained from any judicial measures whatsoever, leaving the public with nothing more than scattered testimony, nongovernmental reports, and other documents circulating at the