Economic Primacy (Human Rights)

Within capitalist societies, free market ideology purports that the market itself can and will punish wrongdoers and that formal regulation is not needed so long as the market functions properly (Snider and Pearce Reference Snider and Pearce1995, 22). It also assumes that all legal (rational) individuals “participate freely and equally in the marketplace and share the same (economic) goals” (Bittle and Snider Reference Bittle and Snider2013, 188–189). Likewise, CSR has roots in the idea that corporations are rational actors making rational decisions within the market (Glasbeek Reference Glasbeek2002, 20). Consequently, it is believed that corporations (a) can avoid causing harm and will do so to serve their long-term interests, (b) will actively and carefully maintain important business relationships (e.g., with shareholders and local communities), and (c) will naturally act in accordance with their own self-interests by rationally considering the costs and benefits of their actions (Whyte Reference Whyte2018, 93–94). This “business case” for CSR promotes responsible business as not only the morally just thing to do but a smart business strategy, weaving corporate “conscience” together with capital (Shamir Reference Shamir2011, 329; Soederberg Reference Soederberg2010, 141). Though met with much criticism, both within and beyond the academy, this rationale is taken for granted as common sense within business and state circles (Shamir Reference Shamir2011, 329).

Weaving social responsibility together with capital suggests that human rights can be bought and sold, and that those who possess more capital will necessarily have “better” human rights experiences (Soederberg Reference Soederberg2010, 141). This sentiment is mirrored in capitalist development models, wherein MNCs are encouraged to consider the social and environmental costs of their projects, often allocating small sums of money to mitigate and/or repair damages incurred (Whyte Reference Whyte2020, 41–43), which reinforces the idea that all problems can be solved with money (Soederberg Reference Soederberg2007, 502). Recent campaigns calling on corporations to consider more explicitly, in advance, the social and environmental costs of their projects mean that, along with production and equipment costs, they must be commodified to count (Whyte Reference Whyte2020, 41–43).

The perspective that the economy and human rights are mutually dependent also reinforces capitalism in the ways it shapes bilateral relations between states. The dominant assumption follows that trade relations can be utilized to positively influence the human rights situation in other countries. Whether through foreign direct investment or bilateral aid, it is assumed that when “developing” states accumulate more capital—or simply more experience interacting with “developed” capitalist states—they can better address human rights issues in their own countries. Bartholomew and Breakspear (Reference Bartholomew and Breakspear2004, 131), however, caution against the universal application of specific interpretations of what it means to “be developed” and raise important questions about what constitutes “human rights.” They argue that associating development with improved human rights to facilitate interstate relations is imperialistic. Human rights, then, cannot and should not be applied unilaterally if it means disrespecting the equal sovereignty of nations to promote one understanding of development and human rights as naturally and morally superior (Bartholomew and Breakspear Reference Bartholomew and Breakspear2004, 138). Capitalist states’ use of human rights as a means to an end thus reveals their underlying priority to accumulate wealth.

The importance of the economy was emphasized in several ways when it came to the CORE’s development: in framing CSR as a business advantage; in conceptualizing human rights and the economy as interdependent; in promoting capital as a viable solution to human rights issues; and in depictions of international trade as a higher state priority than human rights. For instance, during a meeting of the SDIR, Tyler Gillard of the Organization for Economic Co-operation and Development (OECD) responded as follows to a question from a Liberal member of parliament (MP) about the link between responsible extraction and profitability:

The economy was further portrayed as paramount, even when considering how to ensure Canadian corporations act responsibly. For example, Craig Forcese, law professor at the University of Ottawa, suggested, “I think it’s important to underscore that human rights observance is a competitive advantage to most businesses” (SDEV, 1 June 2005, 4, emphasis added). In reference to the CORE, specifically, government documents state:

CSR is thus framed as a competitive business advantage, and Canadian corporations are urged to engage responsibly not because it is recommended, or even or required by law, but because of its long-term profitability.

In other discussions, the state of the economy and of human rights were described as mutually dependent. A strong economy meant that, for instance, money could be funnelled into human rights efforts for so-called “developing” countries. Of note is that Canadian bilateral aid was described as capable of facilitating not only a potential improvement in human rights and corporate accountability in Central America, but also Canada’s engagement in the region from a foreign affairs, trade, and development perspective. For instance, David Usher, Director General of Trade Negotiations within the Department of Foreign Affairs, Trade and Development (DFATD) said: “I would underscore … that our basic premise is that engagement with Honduras is better than isolating Honduras. We think that having stronger commercial and economic ties with Honduras gives us an added opportunity to continue our dialogue with the Honduran government and the Honduran authorities in the area of human rights” (SDIR, 9 June 2016, 7).

In other words, trade relations between Canadian and foreign states are leveraged to facilitate dialogue “in the area of human rights,” emphasizing the importance of the economy in ensuring these conversations even take place.

According to Glasbeek (Reference Glasbeek2002, 17), “[c]apitalism’s strongest argument is that the accumulation of wealth for its own sake is a worthwhile economic and, therefore, meritorious social and political goal,” based on the justification that increased wealth is beneficial for everyone. As a self-proclaimed extractive state, Canada primarily achieves this end via the exploitation of natural resources wherein financial gains are used to rationalize many harmful social, environmental, political, or cultural impacts (Deneault and Sacher Reference Deneault and Sacher2012, 181–182). But this capitalist “more-trumps-less” maxim puts developing states most at risk, especially during inevitable global economic shifts (Snider and Pearce Reference Snider and Pearce1995, 29). To compete within international markets, developing states must bend to the will of more advanced capitalist states and the international bodies they influence, which forces them into dependent relationships with their oppressors and further inhibits their advancement (Carroll Reference Carroll2004, 2; Gordon Reference Gordon2010, 142–144).

During Parliamentary meetings, while there was not unanimous support of the economy-first perspective, the extractive industry was conceived as a gift granted by “strong” states to “weak” ones. As argued:

This sentiment was corroborated by industry representatives, who proclaimed:

In some cases, local community members agreed that economic development was imperative to their stability and well-being; that denying such projects was an infringement on their human rights rather than were the projects themselves. For instance, Pablo Bernardo, a lawyer and Indigenous Subano member from the Philippines argued:

Even more-liberal witnesses noted that economic development has the potential to improve people’s lives, stipulating, however, that respect for human rights must be involved in the process for such benefits to occur (Diana Bronson, International Centre for Human Rights and Democratic Development, SDEV, 1 June 2005, p. 4). In these instances, critical voices found it difficult to avoid dominant beliefs in the purported benefits of foreign direct investment, despite its demonstrated harms. What is more, within the debates about how to balance economic development and respect for human rights when enacting corporate regulation, alternative arguments lamenting economic primacy were sidetracked by dominant voices that framed regulation as desirable only if it did not interfere with the economy.

As noted, a core argument of this article is that regulation has a dual purpose within capitalist societies: to promote economic interests through the advancement of industry and corporate adherence to human and environmental rights standards (Whyte Reference Whyte2020; Woodiwiss Reference Woodiwiss, Morga and Turner2009). Regarding corporate regulation within the Canadian extractive industry, alternative perspectives often highlight the state’s need to create stricter or simply more regulation. Beneath this alternative narrative lies the assumption that the creation of mandatory or binding legislation will solve corporate abuses, whose origins are thought to stem, in part, from the state’s morally deficient decision not to enact and enforce stricter forms of corporate regulation. What this perspective fails to acknowledge, however, is that current regulatory frameworks are not “failed” but achieve what they were designed to do: “satisfy capitalism’s needs” (Glasbeek Reference Glasbeek, Pontell and Geis2007, 250). As Tombs and Whyte (Reference Tombs and Whyte2020, 19, emphasis in original) argue, “…corporate crime very often occurs not because the state is disobeyed, but generally because the state is obeyed.” Therefore, neither the current, dominant framework of voluntary mechanisms of corporate (self-)regulation heralded by the industry nor mandatory forms advocated by non-state actors adequately address the systemic issue that is capitalism (Fairclough and Fairclough Reference Fairclough and Fairclough2012, 7). Nevertheless, there is clearly an issue with perpetuating a system that allows, and even invites, corporations and corporate-centric perspectives to shape the creation of laws and regulations and reinforce corporate impunity for these offences.

When it came to the CORE’s development, dominant knowledge claims that states should not interfere too much in the market prevailed. As such, a paradox emerged between the desire, on the one hand, to prioritize economic development and, on the other, to reduce corporate harm. For instance, Dante Pesce of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises argued for a “…smart mix of regulation and incentives that fits the dual purpose of protecting both human rights and investments” (SDIR, 3 October 2017, 7).

This affinity—for striking a balance between investment and respect for human, environmental, and labour rights—was shared even by representatives from Latin American organizations concerned with upholding such rights. As one witness contended:

From an alternative perspective, the regulatory status quo must be challenged because the current system is ineffective. Within debates about whether corporate regulation should be mandatory or voluntary, many Canadian non-state actors (e.g., Amnesty International Canada, MiningWatch Canada, the CNCA, etc.) favoured mandatory mechanisms, citing the ineffectiveness of past and existing voluntary mechanisms as sufficient reason to enact binding legislation. According to these groups, corporate regulation should both enforce compliance and punish non-compliance.

During a 2019 press conference announcing Sheri Meyerhoffer as the new CORE, even Meyerhoffer argued “that the more tools available to her in her new role, the better. She will need them to fulfil the mandate” (Wells Reference Whyte2019, para. 18). When questioned about the CORE’s mandate as a witness before the SDIR in February 2021, however, Meyerhoffer’s position shifted:

While the Ombudsperson’s first statement supports counter claims calling for the empowerment of the position, their second statement supports the dominant narrative that less is more when it comes to state intervention in the market.

Although disappointing to non-state actors, the CORE’s CSR-style approach was welcomed by the mining industry (Lewis Reference Lewis2019, para. 1). The President and CEO of the MAC, for one, opined: “The establishment of an ombudsman, in our view, should be justified based on whether such an office would offer services not currently provided by the CSR counsellor or the NCP [National Contact Point]. Such an office should add to the remedies available to help resolve conflicts on the ground” (SDIR, 15 October 2017, 3).

Others similarly argued that the proposed quasi-judicial CORE would be less efficient and credible than existing non-judicial mechanisms (Lee, Gratton, and King Reference Lee, Gratton and King2019, paras. 5–6).

As the above examples illustrate, the importance of the economy played a role in influencing the federal Liberal government’s response to corporate crime within the extractive industry, which took the form of a CSR-style approach. Interestingly, the government’s creation of an “ombudsperson” was used to bolster Canada’s reputation as a global industry and CSR leader; to reinforce efforts to impose Canada’s ideals on other states.

The (Moral) Superiority of (Neoliberal) Canada

In addition to the dominance of economic discourses, we uncovered claims that the Canadian government was well placed to be a social responsibility leader for the extractive industry. In Canada, like in other advanced capitalist states, the dominant class expresses its power via the corporations it controls, meaning contemporary class power manifests as corporate power (Carroll and Sapinski Reference Carroll and Sapinski2018, 3). Because “international credibility” is important to the pursuit and successful control of neoliberal capital (Snider and Pearce Reference Snider and Pearce1995, 30), Canadian elites must work to secure and maintain a particular reputation.

Framing non-capitalist states as “less than” or underdeveloped delegitimates non-capitalist values and ways of being while at the same time reproducing existing power relations (Woodiwiss Reference Woodiwiss, Morga and Turner2009, 117). An ideological effect of this narrative is that the Western, bourgeois experience becomes the universal norm and ideal social formation. As such, its promotion around the globe is considered warranted and even morally imperative (Harvey Reference Harvey, Panitch and Leys2004, 81).

Consistent with neoliberal capitalism’s emphasis on the economic dimension of social relations, states were labelled either “strong” or “weak” according to their economic strength or perceived lack thereof. Canada was labelled a strong state through direct comparison with weak states like Guatemala. Canada was also praised as an industry and CSR leader (Lee, Gratton, and King Reference Lee, Gratton and King2019, para. 3) believed to be in an optimal position to improve the human rights situation in other, weaker countries where its extractive industry operates. For example, a news release published by GAC one day in advance of the government’s announcement of the CORE’s creation states: “Building on Canada’s existing expertise and leadership in [CSR], these measures will be ‘best in class,’ reinforcing Canada’s approach to inclusive economic growth, and helping keep Canadian companies at the forefront of responsible business conduct abroad, a competitive advantage in today’s marketplace” (17 January 2018, para. 5).

In a separate news release, GAC intoned that “Canadian businesses demonstrate leadership around the world when they engage in responsible business practices” (8 April 2019, para. 1). The government’s characterization of Canada as a leader was reiterated not only by industry representatives, such as Pierre Gratton, President and CEO of the MAC (SDIR, 15 October 2017, 1), but even well-known human rights activists, such as Alex Neve, former Secretary General of Amnesty International Canada (SDIR, 8 June 2017, 1). As a witness before the SDIR, acting ombudsperson Sheri Meyerhoffer also noted, “The creation of our office represents another example of Canadian leadership on the international stage” (SDIR, 23 February 2021, 2).

Canada’s reputation as a leader reinforced the dominant narrative that “Canada’s influence matters” (Alex Neve, Amnesty International Canada, SDIR, 8 June 2017, 1). For instance, a Guatemalan youth activist and survivor of an attack on peaceful protestors near a Canadian mine site, said, “We know Canada is a country where human rights are greatly valued and respected, so we need your support immediately as Canadian authorities” (Luis Fernando García Monroy, Youth Organized in the Defense of Life, SDIR, 8 June 2017, 4). Likewise, an independent investigative journalist from Honduras expressed the following: “We would like to see countries such as Canada, countries who have a good long-standing relationship with our country and who have investments in the country, do something to make sure that free, prior, and informed consent is respected and that the human rights of the population are respected” (Felix Molina, SDIR, 8 June 2017, 5).

Hence, despite evidence that Canadian extractive projects are associated with egregious violence, and confirmation of the state’s ongoing championing of this industry, dominant voices reinforced Canada’s reputation as a “strong” state that not only values, but upholds, social responsibilities and human rights. Moreover, Canada was characterized as somehow more capable than host states of developing and enforcing democratic standards both at home and abroad. For instance, a DFATD employee highlighted Canada’s role in improving human rights in Honduras—by “putting more emphasis on advancing democracy, promoting the rule of law, and strengthening the capacity of government institutions and oversight bodies to protect human rights” (André Frenette, SDIR, 9 June 2016, p. 2)—and a Conservative member of the SDIR praised these efforts, saying, “Thank you very much … for your expertise, your efforts, and everything that you’ve been doing to ensure that countries like Honduras get as much help as they can from Canada to enjoy the kind of democracy that we enjoy” (MP David Sweet, SDIR, 9 June 2016, 2).

Human rights and democracy were thus framed in Western terms, which marked the standard to which countries like Honduras could rise—with the help of states like Canada. Other witnesses suggested that Canada’s reputation as a strong state meant it was obligated to help weaker states establish “effective governance capacity” (Duane McMullen, DFATD, SDIR, 26 September 2017, 2). Overall, these claims helped maintain Canada’s reputation as a CSR leader while at the same time obscuring its role in supporting and maintaining the extractive industry.

Corporate Violence as the Exception, Not the Rule

Representing Canada’s extractive industry as the pinnacle of “ethical” business also allowed for the reproduction of dominant characterizations of corporate extractive-related violence as the exception, rather than the rule. Social consciousness is influenced by neoliberal market ideology, which leads us to believe that “the [free] market is the most just and effective regulator of economic conduct” (Snider and Pearce Reference Snider and Pearce1995). Based on “market-” and “agent-centered” responsibility models (Tombs Reference Tombs2012, 186), for instance, naming and shaming are believed to be sufficient to deter corporate non-compliance and reputational damage is framed as just as effective as binding legislation, if not more (Fauset Reference Fauset2006, 5). The effect is that responses to “systemic capitalist harm and illegality” (Tombs Reference Tombs2012, 186) are constrained. Furthermore, corporations that do get caught (and maybe sanctioned) are depicted as “bad apples,” which does nothing to address the systemic issues of corporate crime (Whyte Reference Whyte2020, 21).

In conversations leading to the CORE, crime and violence by Canadian extractive corporations was predominantly depicted as the exception. At times, discussions about the state’s regulatory role were shaped to reflect this dominant claim. In one SDIR meeting, the MAC was critiqued for misusing findings from a draft academic article that examined “the determinants of social conflict in the Latin American mining sector” (Dr. Paul Haslam, SDIR, 28 September 2017, 1). One witness argued that the MAC “distorted the article’s conclusions by very selectively drawing from its core arguments” to enhance Canada’s reputation in comparison with other foreign mining firms operating in the region (Dr. Jeffery Webber, SDIR, 28 September 2017, 4). Specifically, by focusing on findings that reported Canada’s corporate behaviour as marginally “better” than its foreign counterparts, the MAC selectively excluded the article’s core finding that “there are extraordinary levels of conflict involving Canadian mining companies” (ibid., 7). According to this witness, the MAC reported these findings out of context, helping to perpetuate the claims that violence in the industry is rare and that Canada is an industry and CSR leader. Andrew Cheatle of the PDAC, however, supported dominant knowledge claims, saying: “[D]espite our industry’s efforts in doing things the right way, right from the start, we are before you today to discuss instances of conflict in Latin America. These instances represent exceptions and not the rule; nevertheless, they warrant our close attention” (SDIR, 5 October 2017, 3, emphasis added).

When violence is characterized as the exception, corporations that fail to act responsibly (and get caught) are criticized more for their role in tarnishing the reputation of the Canadian extractive sector than their potential involvement in human and environmental rights abuses. For example, Christine Côté, Acting Director of the Investment Trade Policy Division within the Department of International Trade, said, “Canadian companies not meeting CSR standards attract negative publicity for themselves, often damaging not only their own reputations, but perhaps also the reputation of Canada in countries where these problems are arising” (SDEV, 11 May 2005, 2). A UN representative also expressed this sentiment, noting: “If a company doesn’t act with due diligence, it will run immediately into problems, and that is going to not only hurt people and cause damage or harm, but also damage the overall reputation of an industry and the reputation and brand of a country” (Dante Pesce, SDIR, 3 October 2017, 7).

According to alternative perspectives, violence is both systemic and widespread within the industry. As a Honduran activist stressed, “We see that there are murders and that nothing is being done” (Bertha Zúniga Cáceres, Civic Council of Popular and Indigenous Organizations of Honduras, SDIR, 8 June 2017, 2), illustrating that corporations are literally getting away with murder. In many discussions, impunity was framed as a host state issue, even by victims.

Placing this responsibility on host states allowed narratives about Canada’s superior morality and the industry’s innocence to shape discussions about the state’s regulatory role. As such, debates about whether host or home states were responsible for—and consequently required to address—corporate impunity surfaced in larger discussions about whose (legal) responsibility it should be to govern Canadian corporations operating abroad: host states, home states, MNCs, or international bodies.

Legal Boundaries Blurred: Redirecting and/or Denying Responsibility

The final discourse relates to the perceived problems of legally controlling MNCs operating abroad. When MNCs commit transgressions overseas, it is often unclear (conveniently, for them) whether the home state (i.e., where the company is headquartered) or the host state (i.e., where the company is operating) is responsible for holding them accountable. “It is also not clear whether the acts of a foreign subsidiary or its contractors would fall within the jurisdiction of the home state” (Simons Reference Simons2017, 427). The location of the alleged crime seems, therefore, to be of utmost importance in determining liability for crimes committed by MNCs, illustrating globalization’s influence on justice in the sense that it confuses who should be responsible for developing and implementing (corporate) human and environmental rights standards.

From our perspective, this is problematic in that, within the context of international law, there is a better chance for host states to be held to account for harms against their citizens (often facing blame for their poor governance structures) than it is for either the private corporations that commit the abuses or, by extension, their home states (Ignacio de Casas Reference Ignacio de Casas, Feichtner, Krajewski and Roesch2019, 261–262; Simons Reference Simons2017, 428). Home state obligations are limited under international law, which stipulates that states are only obligated to respect, protect, and fulfil the human rights of individuals located within their territory, or, in legal terms, under their jurisdiction (Simons Reference Simons2017, 425). If a corporation domiciled in a particular state commits human rights violations outside of that state’s jurisdiction, international law is interpreted such that the home state is not liable for those crimes. For this reason, corporations from developed countries can capitalize on the resources located in developing countries—where there is less regulation and “weak” governance—and benefit from impunity in their domiciled states for any transgressions they commit in the process (Simons and Macklin Reference Simons and Macklin2014, 16–17).

We are once again reminded of Michalowski and Kramer’s (Reference Michalowski and Kramer1987, 36) “space between laws,” where the illegal actions in MNCs’ home states are legal, or existing laws are underenforced, in the host states where they operate. From this, debates ensue over whether MNCs intentionally use these “spaces between” to circumvent laws or are simply their unconscious beneficiaries. Given that MNCs are capable of “influenc[ing] the regulatory climates of developing host nations” (ibid. 38), the former explanation seems more plausible. Due to these jurisdictional issues, developing countries are led to believe that their only recourse lies in the creation of international standards that can better address corporate harm. However, despite crusades in the 1970s to develop a comprehensive set of legally binding standards (ibid. 40–41), no existing international standard provides the reprieve sought by affected communities.

With respect to discussion about the CORE, when extractive industry violence was acknowledged, responsibility was most often redirected from the Canadian state and its corporations to the host countries in which they operate. According to Gary Nash, Assistant Deputy Minister of the Minerals and Metals Sector within the Department of Natural Resources, “While the vast majority of Canadian companies may conduct their business abroad in a proper manner, inadequate governance in developing countries can permit companies to operate in a way that will tarnish the reputation of mining and, by implication, of Canada” (SDEV, 11 May 2005, 4, emphasis added). Similarly, Craig Forcese stated, “[C]ountries with poor human rights environments often present poor business climates. Operating in countries with poor human rights records has a cost for businesses” (SDEV, 1 June 2005, 4).

Rather than focusing on affected local communities, these comments highlight obstacles faced by Canadian corporations operating in regions with “inadequate governance.” While they clearly implicate host states as partially if not wholly responsible for these issues, witnesses less clearly articulated Canada’s role, making it seem as though Canadian corporations’ only crime is choosing to operate in problematic environments. As one industry witness noted:

While this statement acknowledges the complexity of regulating extraterritorial business activity, it still attributes “weak governance, corruption, extreme inequality, and pre-existing social strife” to host states. This implies that Canadian corporations only encounter these issues when operating overseas and therefore should not be held solely responsible for issues that arise when “dealing with complex environments.”

Host states’ “weak” governance is cited as a “significant barrier to ensuring that business operations in developing countries maximize positive developmental results, and mitigate any negative impacts” (Government of Canada, 17 October 2005, para. 51) (read: “weak” host state regulation is the problem, not Canadian corporations’ practices or Canadian regulation). Hence, while weak governance is recognized as an impediment to CSR, neither the Canadian state nor Canadian-based MNCs seem open to alternatives.