in particular, is generally recognised to be insufficient. Few options are available to non-nationals seeking to pursue Canadian corporations in Canada for wrongs committed abroad, excepting general principles of private international law. The instances of extraterritorial criminal responsibility are narrowly provided for, and are clouded with doubt as to whether they apply to corporate activity. As a result, Canadian corporations have been forced to defend their actions before American courts in actions having no connection with the United States.”149
As long as mining companies enjoy near-perfect impunity in Canada, it seems likely that world capital will continue to flow into Canadian financial centres, where it will generate windfall profits at the cost of devastating consequences for local populations.
4. Using the Law to Silence Critics
Fourth in the substantial advantages Canada provides to the world’s extractive industry is legal action against critics. In the South, the mining industry finds invaluable allies among ruling elites in its attempts to subject its critics to prosecution. In the wake of Washington’s “war on terror,” and bowing to American pressure, many governments have adopted laws penalizing legitimate defenders of human rights and ecosystem integrity. Accusations include terrorism, eco-terrorism, sedition, and sabotage, and political leaders are arbitrarily detained. In Canada, where freedom of expression is subordinated to particularly restrictive libel laws and the mining sector looms all-powerful, cases of the legal system being used against critics are legion. In other words, companies can explore and exploit the world’s resources with total impunity as to the conditions in which these activities are carried out, yet it can be extremely dangerous to call attention to the mining industry and its practices or even to discuss the international consequences of its methods.
In recent years, in Ontario, eight indigenous Canadian leaders were sentenced to six months in jail (these sentences were later reduced and the leaders were released after sixty-eight days of detention) for having peacefully demonstrated against platinum and uranium mining projects on their territory. On March 17, 2008, the Ontario Superior Court stated that “the desire of Aboriginal communities to protect their land, cultural heritage and way of life does not supersede a court order granting a [mining] corporation the right to proceed with economic development activities on its land.”150 The First Nations involved had good reason to believe that the authorizations issued by the Ontario ministry of mines to Platinex, an exploration company, and to Frontenac Ventures Corporation, which had already begun operations on their lands, did not comply with Supreme Court judgments regarding their rights.151 The communities opposed to the mining projects on their lands “have proposed a joint panel to investigate what led to these conflicts and recommend new approaches to mineral exploration on First Nations’ lands, but have received no reply from Ontario premier Dalton McGuinty.”152
Nothing seems to be able to stop the mining industry from imposing its peculiar concept of “justice” in these matters. Corporate legal action against a government minister may be undertaken if necessary, as in Romania, where the Canadian mining firm Gabriel Resources filed suit against the former minister of the environment, Attila Korodi, and against the secretary of state, Silviu Stoica, seeking €100,000 in damages.153 The two, by virtue of their public responsibilities, had apparently committed the unforgivable in attempting to protect the existence of Rosia Montana, a two-thousand-year-old village threatened with extinction by an open-pit gold mine described as Europe’s largest. Romanians had done everything they could to block the mine. An NGO, Alburnus Maior, filed suit against the Canadian firm to denounce irregularities in the decision-making process, and in 2008, the departmental Court of Appeal of Alba Iulia declared that the company was in the wrong and that Rosia Montana’s Urbanistic Plans were illegal. But the legal decision had no real effect on the exploitation process. Romania’s minister for the environment and forests, Laszlo Borbely, decided to reinitiate the authorization procedure for the Rosia Montana mining proposal.154
In a slightly different register, the government of El Salvador had refused to authorize exploitation of a gold deposit in the country’s central northern region. The Canadian company Pacific Rim, through its Panamanian subsidiary Pac Rim Cayman LLC, filed a complaint with the World Bank demanding US$77 million in damages from the Salvadoran government.155 The company’s lawsuit was filed under the provisions of the free-trade agreement between the United States and most of the countries of Central America. Reliance on this kind of arbitration, which is becoming more and more common, has been described by French jurist William Bourdon as “a veritable privatization of the legal system, designed to bypass national judges.”156 A similar case is that of the NewGold corporation in Mexico, where the company continues to operate and thus to endanger the historical and environmental heritage of the village of Cerro de San Pedro and its surroundings despite a definitive decision brought down by Mexico’s Federal Tribunal of Fiscal and Administrative Justice, which ruled the company’s operating permits illegal.157
In Canada, it has become risky for university researchers even to discuss the ethical issues raised by documents from international sources on the damage inflicted by Canadian extractive sector companies around the world. Following are some of the fundamental questions that can rarely be addressed:
How is it that Canadian firms are active in regions where mining resources are the object of local hostilities?
What is the impact of a Canadian economic presence, and the incentives provided by Canadian companies, on the evolution of conflicts involving many parties?
Do Canadian firms fund and support parties favourable to their interests, and if so, to what extent?
To what extent did former Canadian prime ministers Brian Mulroney, Jean Chrétien, and Joe Clark, when they worked for mining and oil companies operating in Africa or Latin America, use the privileged information they might have received in the exercise of their public functions?
What are the implications of this kind of privatization of public information?
Why is it so easy for companies to use the Toronto Stock Exchange to register (often for merely speculative purposes) mineral concessions and resources acquired during wars as violent as those in Colombia, Congo-Kinshasa, or Sudan?
Why, in such cases, do corporations listed on the Toronto Stock Exchange receive financial support from the Canadian government? Why, for example, has Banro received a loan of several million dollars from the Canada Investment Fund for Africa (CIFA), a semi-public entity established to foster development in Africa?
Why does the Canadian International Development Agency provide financial support to companies whose record overseas raises serious ethical issues, while minimizing the accusations levelled against them?
How far is Canada prepared to go in exporting its destructive mining-industry “expertise”?
Why has Canada, without consulting its citizens in any way, encouraged investment in the mining industry to such an extent that citizens who put their savings in government retirement funds, banks, insurance companies, mutual funds, and other public funds have become the accomplices of this highly controversial industry?
And above all:
What price do people in the South have to pay in order for a share price to rise on the Toronto exchange, bringing large profits to major shareholders and modest returns to small investors? Must dictators be strengthened, civil servants corrupted, ecosystems destroyed, workers suppressed, peasants expropriated, arable land flooded, community leaders assassinated, warlords financed, contracts deposited in Caribbean tax havens, taxes evaded, and Africa looted, for the sole purpose of supporting extractive industries registered in Canada?
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