Bill C-323: A tough on crime idea we actually like

Corporate bad apples may find the law harder to avoid. Creative Commons photo by Flickr user walknboston

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 system.

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 Julian.

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 whole. “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 HudBay.

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.”