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³ As of December 2011, there were 1646 mining companies listed on the TSX/V. The majority of these were exploration companies: TMX, A Capital Opportunity: Mining (2012), 11, 17, 24, available online at: http://www.tmx.com/en/pdf/Mining_Presentation.pdf (last accessed: 1 December 2012). [TMX, “Mining”]. However, 16 of the “top 100” mining companies in the world are Canadian, which is second only to China's 18 companies in this same category, see Stothart, supra note 2, at 81.Google Scholar

⁴ TMX, “Mining”, supra note 3, at 13.Google Scholar

⁵ Id. at 19, 21.Google Scholar

⁶ Stothart, , supra note 2, at 91.Google Scholar

⁷ The relative decline in recent years, namely, from 15% in the 1990s to about 10% in the last decade, is due to the increased outward investment in the energy and financial sectors, see Stothart, supra note 2, at 82.Google Scholar

⁸ TMX, “Mining”, supra note 3, at 23.Google Scholar

⁹ Natural Resources Canada, The Geographical Distribution of Canada's Mining Assets, available online at: http://www.nrcan.gc.ca/minerals-metals/publications-reports/4425 (last accessed: 1 December 2012).Google Scholar

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¹¹ TMX, supra note 3, at 16.Google Scholar

¹² TMX, supra note 3, at 29. The region of Asia tied with South America for this top position.Google Scholar

¹³ Advisory Group Report, National Roundtables on Corporate Social Responsibility (CSR) and the Canadian Extractive Industry in Developing Countries, Prospectors and Developers Association of Canada (PDAC), 4-5 (Mar. 29, 2007), available online at: http://www.pdac.ca/pdac/misc/pdf/070329-advisory-group-report-eng.pdf (last accessed: 1 December 2012).Google Scholar

¹⁴ The Advisory Group's Report was based on submissions made during the National Roundtables. In total, the Advisory Group heard 156 oral presentations and received 104 written submissions. Of these oral presentations, 61 were from civil society, 33 from industry, 15 from labor organizations, 31from academics and research institutes, and 16 from members of the public without a stated affiliation, see Advisory Group Report, supra note 13, at i. Google Scholar

¹⁵ For detailed discussions of this case, see Kernaghan Webb, CSR and the Law: Learning from the Experience of Canadian Mining Companies in Latin America, in Governance Ecosystems: CSR in the Latin American Mining Sector 47, 48-9 (Julia Sagebien & Nicole Marie Lindsay eds., 2011); Craig Scott & Robert Wai, Transnational Governance of Corporate Conduct through the Migration of Human Rights Norms: The Potential Contribution of Transnational Private Litigation, in Transnational Governance and Constitutionalism 287, 297-303 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., 2004).Google Scholar

¹⁶ McGee, Brant, The Community Referendum: Participatory Democracy and the Right to Free, Prior and Informed Consent to Development, 27 Berkeley J. Int'l L. 570 (2009). In 2002 the community of Tambogrande, Peru voted against a gold mining project proposed by Manhattan Minerals. It is reported that 98% of the 73% of eligible voters who participated voted against the project, see McGee, The Community Referendum at 604. In 2005 the community of Esquel, Argentina voted against a project proposed by Meridian Gold. It is reported that 81% of 75% of eligible voters who participated voted against the project, see McGee, The Community Referendum at 615; Mariana Walter & Joan Martinez-Alier, How to be Heard When Nobody Wants to Listen: Community Action against Mining in Argentina 30 Can. J. of Dev. Stu. 281 (2010). In 2005 indigenous communities in Sipacapa, Guatemala voted against the activities of Marlin Mine owned by Goldcorp. It is reported that 11 of 13 villages voted against mining, casting 2486 votes against the mine with only 35 votes in favour, see McGee, The Community Referendum at 619.Google Scholar

¹⁷ To date the primary impact of these referenda have been political. However, several authors have argued that these referenda, particularly when undertaken by indigenous communities, have legal weight in international law. One argument is that these referenda carry legal weight in international law under the rubric of the right to free, prior and informed consent, see McGee, The Community Referendum at 635. Another argument is that the Guatemala referendum was an expression of Indigenous law, made with the authority that arises from the inherent rights that come with being an indigenous people, see Shin Imai, Ladan Mehranvar & Jennifer Sanders, Breaking Indigenous Law: Canadian Mining in Guatemala, 6 Indigenous L.J. 1, 17 (2007). For an argument that links the Guatemala referenda to the right to self-determination, see Tara Ward, The Right To Free, Prior, And Informed Consent: Indigenous Peoples’ Participation Rights Within International Law, 10 Nw. J. Int'l H.R. 54 (2011).Google Scholar

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¹⁹ Ownership of the El Estor Mine changed hands between three Canadian companies between the early 1960s and 2008 before being sold to a private company headquartered in Cyprus in 2011. For instance, see Shin Imai, Bernadette Maheandiran & Valerie Crystal, Accountability Across Borders: Mining in Guatemala and the Canadian Justice System, in Transnational Corporations, Human Rights and Environmental Justice in Latin America (Obi Aginam, ed., forthcoming).Google Scholar

²⁰ Complaint Submitted to the Canadian National Contact Point Pursuant to the OECD Guidelines for Multinational Enterprises Concerning: The Operations of Excellon Resources Inc. at the La Platosa Mine in the Ejido “La Sierrita”, Durango State, México (29 May 2012). Excellon is also accused of systematically undermining the efforts of its employees to organize a democratically elected labour union through acts of union intimidation and violations of workers’ rights to freedom of association. See press release and accompanying documents at: Mining Watch Canada, “Mexican Workers, Landowners File Second Complaint Against Canadian Mining Company Excellon Resources” Press Release (29 May 2012), available online at: http://www.miningwatch.ca/news/mexican-workers-landowners-file-second-complaint-against-canadian-mining-company-excellon (last accessed: 1 December 2012).Google Scholar

²¹ Some of these violent confrontations were caught on film: see Malcolm Rogge, Under Rich Earth, see documentary website at <http://underrichearth.ryecinema.com/?page_id=114>, They were also the subject of an unsuccessful lawsuit in Canada: Piedra v. Copper Mesa Mining Corporation: Statement of Claim, (3 March 2009), available at: http://www.ramirezversuscoppermesa.com/ (last accessed: 1 December 2012); Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191.,+They+were+also+the+subject+of+an+unsuccessful+lawsuit+in+Canada:+Piedra+v.+Copper+Mesa+Mining+Corporation:+Statement+of+Claim,+(3+March+2009),+available+at:+http://www.ramirezversuscoppermesa.com/+(last+accessed:+1+December+2012);+Piedra+v.+Copper+Mesa+Mining+Corporation,+2011+ONCA+191.>Google Scholar

²² McGee, , The Community Referendum, supra note 16, at 574.Google Scholar

²³ For an overview of these assassinations, see Imai, Maheandiran & Crystal, Accountability Across Borders, supra note 19. The 2009 assassination is the basis of a civil lawsuit currently underway in Canada, see Choc v. HudBay Minerals Inc., CV-10-411159 (Ont. Sup. Ct. J. filed Sept. 24, 2010), available online at: http://www.chocversushudbay.com/wp-content/uploads/2010/11/Second-Amended-Fresh-as-Amended-Choc-v.-HudBay-FILED.pdf (last accessed: 1 December 2012).Google Scholar

²⁴ These alleged rapes are the basis of a civil lawsuit currently underway in Canada, see Caal v. Hudbay, CV-11-423077 (Ont. Sup. Ct. J. filed Mar. 28, 2011), available online at: http://www.chocversushudbay.com/wp-content/uploads/2010/11/Amended-Statement-of-Claim-Caal-v.-HudBay-FILED.pdf (last accessed: 1 December 2012).Google Scholar

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²⁸ Id. at 2.Google Scholar

²⁹ The Report defined this as including export and project financing together with services offered by Canadian missions abroad, see id. at 2.Google Scholar

³⁰ Id. The Report suggested that compliance could be demonstrated through the mechanism of human rights impact assessments.Google Scholar

³¹ Id. at 3.Google Scholar

³² Certain IFIs, such as the World Bank and those banks that have signed onto the Equator Principles, have CSR policies. However, as of 2010, there was no known example of a case where an IFI had withdrawn project financing on the basis of a violation of these policies: Catherine Coumans, Alternative Accountability Mechanisms and Mining: The Problems of Effective Impunity, Human Rights, and Agency 30 C.J.D.S. 27, 36, (2010).Google Scholar

³³ Advisory Group Report, supra note 13.Google Scholar

³⁴ Coumans, supra note 32, at 40-41.Google Scholar

³⁵ A third component, albeit less salient from a regulatory perspective, related to the formation of a multi-stakeholder Canadian Extractive Sector Advisory Group to advise government on the implementation and further development of the Canadian CSR Framework, see Advisory Group Report, supra note 13, at iii.Google Scholar

³⁶ Id. at iv-v.Google Scholar

³⁷ Id. at v. In its Report, the Advisory Group acknowledges that the initial recommended framework falls short of addressing the full range of issues of concern regarding extractive industry, particularly with regard to human rights, see id. at iv.Google Scholar

³⁸ Id. at vi-vii.Google Scholar

³⁹ Id. at xii-xiii.Google Scholar

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⁴² Office of the Extractive Sector Corporate Social Responsibility (CSR) Counselor, 2011 Annual Report to Parliament (Nov. 2011), available online at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/2011_report_to_parliament-eng.pdf (last accessed: 1 December 2012).Google Scholar

⁴³ Id. at 22. Office of the Extractive Sector Corporate Social Responsibility (CSR) Counselor, Closing report – Request for review file #2011-01-MEX (Oct. 2011), available online at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Closing_report_MEX.pdf (last accessed: 1 December 2012). The Counselor stated that in her opinion Excellon's decision to withdraw represented a significant missed opportunity and that the request for review had every reason to move fruitfully to a structured dialogue were it not for Excellon's withdrawal, see id. at 2-4.Google Scholar

⁴⁴ Office of the Extractive Sector Corporate Social Responsibility (CSR) Counselor, Closing report – Request for review file #2011-02-MAU, 4 (Feb. 2012), available online at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/2011-02-MAU_closing_report-rapport_final-eng.pdf (last accessed: 1 December 2012).Google Scholar

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⁴⁶ An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, Bill C-300, first reading Feb. 9, 2009, available online at: http://www.parl.gc.ca/content/hoc/Bills/402/Private/C-300/C-300_1/C-300_1.PDF (last accessed: 1 December 2012).Google Scholar

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⁵¹ Canada Pension Plan Investment Board Act, S.C. 1997, available online at: http://laws-lois.justice.gc.ca/eng/acts/C-8.3/ (last accessed: 1 December 2012).Google Scholar

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⁵³ An Act to amend the Federal Courts Act (international promotion and protection of human rights, Bill C-354, first reading Apr. 1, 2009, s. 14, available online at: http://www.parl.gc.ca/content/hoc/Bills/403/Private/C-354/C-354_1/C-354_1.PDF (last accessed: 1 December 2012).Google Scholar

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⁵⁷ Since that time, this bill has not moved beyond the phase of introduction and first reading, see Parliament of Canada, Legisinfo – Private Member's Bill C-571, available online at: http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=4663285 (last accessed: 1 December 2012).Google Scholar

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⁵⁹ Catherine Coumans testified before the SCFAIT and was also a member of the National Roundtables Advisory Group, see House of Commons Standing Committee on Foreign Affairs and International Trade, supra note 27. MiningWatch Canada was a key supporter of Bill C-300, see Canadian Network on Corporate Accountability, supra note 1.Google Scholar

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⁶² The Advisory Group sanctioned the International Finance Corporation (IFC) Performance Standards and the Voluntary Principles on Security and Human Rights as the only appropriate sources of standards, in addition to the OECD Guidelines, already endorsed by the Government of Canada, see Advisory Group Report, supra note 13.Google Scholar

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⁶⁴ Id. See also Coumans, supra note 32, at 41-42.Google Scholar

⁶⁵ Advisory Group Report, supra note 13, at v. In its Report, the Advisory Group acknowledges that the initial recommended framework falls short of addressing the full range of issues of concern regarding extractive industry, particularly with regard to human rights, see id. at iv.Google Scholar

⁶⁶ Id. at iv.Google Scholar

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⁶⁹ For an argument that the Canadian state has a duty in international law to regulate in this regard, see Sara Seck, Home State Responsibility and Local Communities: The Case of Global Mining 11 Yale Hum. Rts. & Dev. L.J. 177 (2008).Google Scholar

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⁷² For some examples of contributions that attempt to reveal the political/policy decisions involved in creating different aspects of the market, see David Kennedy, Some Caution About Property Rights as a Recipe for Economic Development 1 Acc., Econ., & L. 1 (2011); Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (2011); Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State 38 Pol. Sci. Q. 470 (1923); Morris R. Cohen, Property and Sovereignty 13 Cornell Law Q. 8 (1927).Google Scholar

⁷³ Of course the constitutional division of powers between the federal and provincial governments in Canada determines to some extent which level of government performs what role in the creation and maintenance of Canadian financial markets.Google Scholar

⁷⁴ Export Development Act, supra note 50, at ss. 3-5, 10, 11.Google Scholar

⁷⁵ In spite of this, the Advisory Group Report does contain recommendations that call on Export Development Canada to improve its disclosure policy, see Advisory Group Report, supra note 13, at vi, 19.Google Scholar

⁷⁶ In fact, large institutional investors such as pension funds account for over one-third of the world's invested assets, see Foreign Affairs and International Trade Canada, Corporate Social Responsibility, Financial Incentives (Mar. 2009), available online at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/ds/csr-strategy-rse-stategie.aspx?view=d (last accessed: 1 December 2012).Google Scholar

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⁷⁹ For the statutory description of the CPP Board's duties, see Canada Pension Plan Investment Board Act, S.C. 1997, s. 14, available online at: http://laws-lois.justice.gc.ca/eng/acts/C-8.3/ (last accessed: 1 December 2012), For the common law definition of fiduciary relationship, see Hodgkins v Simms, 117 D.L.R. (4th) 161 (1994). The CPP Board is generally understood to have a fiduciary relationship in law with CPP beneficiaries that prevents it from taking human rights concerns into account that might negatively affect financial returns, see Benjamin J. Richardson, From Fiduciary Duties to Fiduciary Relationships for Socially Responsible Investing: Responding to the Will of Beneficiaries, 1 J. of Sust. Fin. & Inv'nt. 5, (2010). The CPP is a signatory to the United Nations-backed voluntary Principles for Responsible Investment. The Principles declare that, “as institutional investors, we have a duty to act in the best long-term interests of our beneficiaries. In this fiduciary role, we believe that environmental, social, and corporate governance (ESG) issues can affect the performance of investment portfolios”. Signatories of the Principles “publicly commit to adopt and implement them, where consistent with our fiduciary responsibilities.” See PRI Secretariat, The Principles of Responsible Investment, available online at: http://www.unpri.org/principles/ (last accessed: 1 December 2012).Google Scholar

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⁸¹ For example, the Swedish, Norwegian, New Zealand and French national pension schemes are statutorily required to invest responsibly, see Benjamin J. Richardson, Protecting Indigenous Peoples through Socially Responsible Investment 6 I.L.J. 1, 29 (2007). A recent example of divestment based on a country's human rights record occurred in 2006/2007 in California when the state government introduced the California Public Divest from Sudan Act, Cal. Gov. Code § 7513.6 (2012), available at: http://law.onecle.com/california/government/7513.6.html (last accessed: 1 December 2012), and the California Public Divest from Iran Act, Cal. Gov. Code § 7513.7 (2012), available at: http://law.onecle.com/california/government/7513.7.html (last accessed: 1 December 2012).Google Scholar

⁸² Canada Pension Plan Investment Act, supra note 78, at ss. 2, 3, 10. The Board is also accountable to provincial Ministers, see s. 50.Google Scholar

⁸³ These are the IFC's Performance Standards, which govern the terms of loans made by the IFC, and the Global Reporting Initiative (GRI), with an original target audience of investors, see Global Reporting Initiative, What is GRI?, available online at: https://www.globalreporting.org/information/about-gri/what-is-GRI/Pages/default.aspx (last accessed: 1 December 2012). The Voluntary Principles are based on human rights principles but only apply to the area of security. The OECD Guidelines were not developed in a risk-based framework, however prior to the introduction of its CSR policy, the Canadian government had already adopted these voluntary guidelines as an OECD member and through the Canadian National Contact Point.Google Scholar

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⁸⁶ The policy's first pillar involves supporting initiatives to enhance the capacity of developing countries to manage the development of extractive activities and improve economic development. However, there is no clear link made between this objective and the concerns of communities and individuals adversely affected by a Canadian company. The fact that economic development in the form of resource extraction does not necessarily translate into an improved situation for mining-affected communities is well documented in the resource curse literature. See for instance, Paul Collier, Laws and Codes for the “Resource Curse” 11 Yale Hum. Rts. & Dev. L.J. 9, (2008); Matthew Genasci & Sarah Pray, Extracting Accountability: The Implications of the Resource Curse for CSR Theory and Practice 11 Yale Hum. Rts. & Dev. L.J. 37, (2008); Jeffery D. Sachs & Andrew M. Warner, Natural Resources and Economic Development: The Curse of Natural Resources 45 Eur. Econ. R., 827 (2001); Michael L. Ross, The Political Economy of the Resource Curse 51 World Politics 297, (1999).Google Scholar

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⁸⁹ For example, two defamation suits were recently brought in Canada by Canadian mining companies against journalists and academics who published research critical of these companies, see Canadian Association of University Teachers (CAUT) Bulletin, Noir Canada Defamation Lawsuit Settled, Publication of Book Stopped (Nov. 2011), available online at: http://www.cautbulletin.ca/en_article.asp?articleid=3342 (last accessed: 1 December 2012).Google Scholar

⁹⁰ The Bill's sponsor, Member of Parliament Peter Julian, organized a conference in support of the Bill, held on 16 March 2012 in Ottawa. The subject matter of this conference focused exclusively on Canadian companies’ operations abroad, particularly in the area of mining, and the impacts on communities. See Peter Julian, Walking the Talk: Human Rights Abroad, Take II (Mar., 16, 2012), available online at: http://peterjulian.ndp.ca/conference-agenda-programme (last accessed: 1 December 2012).Google Scholar

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⁹² In the United States, as of 2004 there were approximately twelve active cases against corporate defendants under the ATCA, only three or four of which had survived a motion to dismiss on the basis of jurisdiction. Most of the ATCA cases against private corporations have been dismissed for lack of jurisdiction and none have resulted in a final judgment against a U.S. corporation: Harold Hongju Koh, Separating Myth from Reality about Corporate Responsibility Litigation, 7 J. of Int'l Econ. L. 263, 269-70, 298 (2004).Google Scholar

⁹³ In Canada the courts have adopted such a narrow approach to the doctrine of forum non-conveniens that most litigants have been unable to convince the courts to take jurisdiction over the harm allegedly caused by a Canadian mining companies abroad. Recherches Internationales Quebec v. Cambior Inc., [1998] Q.J. no 2554 (Can. Que. Sup. Ct. J.); Anvil Mining Limited v. Association canadienne contre l'impunité, [2012] J.Q. no 368, 2012 QCCA 117 (Can. Que. Ct. A.). For a review of these cases, see Webb, supra note 15, at 48-52; Imai, Maheandiran & Crystal, supra note 19.Google Scholar

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