Legislative reform in Canada to combat global impunity of Canadian companies and investors

Rights Action – November 13, 2011, 2011

Legislative reform in Canada to combat global impunity of Canadian companies and investors



* Article: “BILL C-323: A TOUGH ON CRIME IDEA WE ACTUALLY LIKE”, by by Mary Dirmeitis

* News release: Canadian member of parliament, Peter Julian, announces Bill C-323, a law aimed at “allow[ing] non-citizens to sue Canadians and Canadian corporations for gross violations of basic human, environmental or labour rights when they are committed outside of Canada.”



Peter Julian, MP

Burnaby-New Westminster

NDP Industry Critic

Tel: (613) 992-4214

TTY: (613) 992-4249

CEP 232/SCEP 232








by Mary Dirmeitis




Some of you may remember Bill C-300. Proposed by Liberal MP John McKay, it was an act that pledged to withdraw financial and consular support by government to mining companies who were found in violation of human rights standards. This bill narrowly lost the vote at its third reading 140-134 last October after fellow party members failed to show up. Ahem, Ignatieff.


But ideals around accountable Canadian corporations were not lost along with

the Liberal party’s former leader. NDP MP Peter Julian has resurrected his

previous Bill C-354, now Bill C-323 with its first reading October 5th. An

essentially made-in-Canada version of the US Alien Tort Claims Act, this

bill amends the Federal Courts Act to permit a non-citizen plaintiff to

challenge any body, including a Canadian company, in our federal court



Our current system makes it very difficult for victims of human rights

abuses abroad to use our federal courts to obtain justice. Bill C-323 will

ensure that these victims can follow up on international civil claims in

Canada by knocking down a main defence used by many corporations called

forum non conveniens. This doctrine allows courts to refuse to take

jurisdiction over a case if there is a more convenient and appropriate forum

for the case to take place.


In the mining industry, for example, many injustices occur among

impoverished populations whose court systems may not be willing or able to

entertain a claim against a multi-billion dollar company. So, under forum

non conveniens, Canadian companies can claim that the case should be held in

the country of the alleged abuse, knowing full well that they will escape

unpunished in those courts.


Bill C-323 would diminish the effectiveness of forum non conveniens and

allow cases to be heard in Canada against any corporation and individual by

any individual, for a variety of breaches of international human rights,

international treaties to which Canada is a signatory, as well as for

environmental damage. It would ensure companies understand that they will be

held responsible if their operations are committing abuses.


Although it sounds great, skepticism breeds when it comes to private members

bills actually passing. Even Openparliament.ca writes in their label of

private members bills that “These don’t often become law”.


But public support can be a real push factor to get contentious legislation

such as Bill C-323 through the house. Just ask McKay, who says that he had

completely underestimated the amount of international support that he

received throughout the two year lifespan of C-300.


Unfortunately, the lobbyists tagged along for the ride. “I didn’t anticipate

people coming from all over the world, literally, and either speaking at the

committee or writing letters of support or buttonholing MPs. But because I

didn’t anticipate that support, I also didn’t anticipate the blowback from

mining companies.”


Stepping up to the challenge, Julian is not naive about the now majority

Conservative perspective. “They will try to hide behind voluntary

guidelines, but we have a government that does not, in any way, believe in

corporate social responsibility,” he says. “It would be ridiculous to say,

in a community, everybody’s going to respect the law on a voluntary basis

and if you break the law there is no sanctions. It’s an absurd proposition.”


This seems strange as Harper and Co. proudly label themselves as tough on

crime. “When you think about it, this is a government who is willing to fill

the jails with people who have minor drug possession and yet, will allow

Canadian corporations to act with complete and total impunity,” states



And to combat the all-powerful mining lobby? Julian has a plan for that too.

He doesn’t believe that it is the entire Canadian mining industry that is

guilty of atrocious human rights violations abroad, but that the few are

staining not only the mining sector’s reputation, but that of Canada as a



“What I do think needs to happen is a very clear separation, to isolate the

bad apples and promote the necessity for this legislation to be in place.

It’s a different strategy where you would divide the mining sector and turn

the sector against the bad apples rather than have the mining industry unite

around them.”


One mining company in the sights of activists is HudBay Minerals Inc. HudBay

has received significant negative publicity for the actions of the security

forces at their Fenix nickel mining project in El Estor, Guatemala. Cory

Wanless, a lawyer at Klippensteins Barristers & Solicitors, is hoping to

hold HudBay accountable for the death of Adolfo Ich in 2009, as well as

eleven counts of rape in 2007. Wanless believes that you can sue Canadian

companies for what they do abroad as long as there is a substantial

connection to Canada. In this case, since the company is Canadian, there’s

your connection.


However, there is a problem. Along with forum non conveniens, another common

tactic used by multinational corporations is that of the subsidiary company.

When a corporation has a subsidiary, the subsidiary is a company that the

main corporation owns but is not accountable for. So according to HudBay,

the abuses in El Estor were not committed by them and, therefore, they are

not their responsibility. This is because the company that hired the

security forces, CGN, is a subsidiary of HMI Nickel, which has merged with



This is a legally legitimate excuse by HudBay. However, the HudBay executive

in charge of all the company’s operations in Guatemala, John Bracale, is

also the CEO of CGN. Therefore, Wanless hopes to prove that HudBay was in

direct control of CGN and had employed their head of security, Mynor

Padilla, Ich’s alleged killer.


HudBay also wants to resort to forum non conveniens and have the case heard

in Guatemala. This is bad news for the plaintiffs. “We believe that there is

no chance that our clients can get justice in Guatemala,” says Wanless. “And

I don’t like criticizing other judicial systems.”


If Bill C-323 were to pass, although it wouldn’t necessarily affect these

cases, it would greatly clarify the ability for cases such as these to be

heard in the court system of where the parent company is from. For people

like Angelica Choc, the wife of Ich who is the one suing HudBay, this would

mean a chance at justice.


When asked about the impunity rate in Guatemala, Wanless states, “It’s

99.75% for violent crime, which, if you round it, that’s 100%.”


When deciding which court system is most convenient and appropriate, he

believes that considerations of those numbers should be front and centre.


Wanless also believes that this is a Canadian problem. “The decisions, the

financing, the control, of these Canadian corporations happens from Canada.

They’re the ones that are pulling the strings. So, when things go wrong, we

believe that they should be held accountable in their home jurisdiction,” he

says. “HudBay’s offices, for instance, they’re just around the corner from

where the courts are. So it is a bit funny for them to be arguing that it is

inconvenient for them to hear the case in Canada.”


Wanless sees Bill C-323 as a tool to prevent abuses by companies such as

HudBay. Corporations are rational entities who don’t like risk, and he

thinks that by creating risk, such as a threat of litigation, Canadians as a

society can have an impact on the behaviour of companies.


Mark Rowlinson, council in the the United Steelworkers’ legal department,

helped Julian write Bill C-323. He agrees that this bill is the way forward.

“Clearly legislation in the area of corporate accountability means something

or else the mining companies wouldn’t have resisted C-300 as heavily as they

did,” he says.


Both resistance and support for C-300 was immense, but ultimately our

government, with the help of the extractive industry lobby groups,

overturned it. However, support for C-300 was also fractured in the activist

community. Reasons for this included the lack of inclusion of indigenous

sovereignty rights and the limited response given to the government in the

event of a discovery of abuse.


“There is prohibition, but no penalty. So the government can withdraw its

funding, but then can only ask the mining company to stop,” explains law

graduate and mining injustice activist Marie Sydney. “So in the off-chance

that the Environment Minister actually decides to investigate and then finds

human rights abuses, there is no provision here that says what the

government can do if the company refuses to stop their operations. It’s as

if the government did something, but in effect, it didn’t.”


McKay admits that “C-300 was not the ten commandments.” But even that

glimmer of accountability proved too radical for our Conservative government

and their pals in the extractive industry. Activists who hope for at least a

lesser chance of such widespread, unchecked injustice abroad may do well to

consider the benefits of incremental change. Julian has noticed that the

mining sector seems to react better to a legal remedy, but the reality is

that the sanctions would be stronger under Bill C-323 than they were with

Bill C-300. “We’re going to have to work very carefully over the next few

years to make sure that we get the real level of support out across the

country so that we can eventually bring this legislation in,” says Julian.


Laws like C-323, although possibly not radical enough for some, may be the

first of many steps to stop the impunity of systemic human rights abuses

executed by Canadian companies abroad. At a time when even baby-teeth bills

are shot down in parliament, Bill C-323 could be the only hope to rein in

the companies that currently have no real reason to act responsibly in their

operations. By even raising the issue, both McKay and Julian are getting in

the heads of Canada’s richest companies, and according to Wanless, there is

value to that.


“If this is the sort of thing that lawyers for the companies have to bring

up in board meetings, that directors have to discuss, then I think that’s

fantastic, and then perhaps, maybe next time, Adolfo will be alive and there

will be no need to have this sort of litigation.”






FROM: peter.julian@parl.gc.ca






Dear friends,


There continue to be concerns about the behaviour of some Canadian corporations abroad. Canada must make the changes that would help ensure that our legal institutions and system are able to protect from impunity not just Canadians, but also citizens living abroad when they are victims of human, environmental or labour rights violations by Canadian individuals or corporations. Canada’s federal government has failed to do so.


I have reintroduced Bill C-323 (formerly Bill C-354) in the hope that we will continue to work together to raise awareness and increase the pressure on the Conservative government to take the bold steps Bill C-323 proposes.


There are companies that do conduct their business in a socially responsible manner. However, there are others that have no regard for human, environmental or labour rights. Currently, these rights are subject to few concrete or effective enforcement mechanisms. As a result, there is an urgent need to create an enforceable legal mechanism to remedy egregious violations of international human rights. Sadly, even modest legislative proposals to bring to account corporate impunity have been rejected by successive federal governments.


I believe that my Bill C-323 (The International Protection & Promotion of Human Rights Act) would fill this need for the victims of international human rights violations when no forum is available to them in the country where the violations are taking place.


As you may know, Bill C-323 would provide international communities with the option to pursue legal recourse in Canadian federal courts, which would include clear violations of international human and environmental rights such as: degrading treatment, arbitrary arrest, kidnapping, infliction of emotional distress, genocide, war crimes, extrajudicial killing, slavery, torture and unlawful detention.


C-323 would create a new civil cause of action that would allow the Federal Courts to hear and decide claims for violations of international law that occur outside of Canada. Specifically, the legislation would allow non-citizens to sue Canadians and Canadian corporations for gross violations of basic human, environmental or labour rights when they are committed outside of Canada.


In keeping with our common goals, I look forward to continuing the good work we have undertaken together in previous parliaments. Together we can bring about these positive changes to help Canada progress and lead, at home and abroad, in the field of human rights and environmental sustainability.


Peter Julian, MP

Burnaby-New Westminster

NDP Industry Critic






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