Digging For Justice

Serving as the corporate headquarters of nearly half of all publicly listed mining companies in the world, Canada has long been an international leader in the metal and mineral extraction industry.

And while it’s commonly assumed that Canadian-based mining companies uphold ethical corporate standards and follow rigorous environmental, social and governance (ESG) criteria when operating abroad, there is no governmental body or industry association tasked with enforcing these practices. As a result, Canadian-based mining companies overseeing $214.7 billion in assets across 98 foreign countries are not held to Canadian legal standards outside of Canada’s borders. Filling the void, a dedicated volunteer-run program affiliated with York’s Osgoode Hall Law School acts as a vigilant watchdog, aiming to ensure accountability for any misconduct by these businesses.

The Justice and Corporate Accountability Project (JCAP) was founded by Professor Emeritus Shin Imai more than a decade ago. Now, Imai and six former students make up JCAP’s board of directors, while current students – from Osgoode and from other Canadian universities – serve as either volunteers or paid research assistants, investigating unethical behaviour, liaising with foreign non-profits, NGOs and activists and compiling reports.

“What we try to do as lawyers is to hold Canadian mining companies accountable when they cause harm overseas. Now, companies have voluntary corporate social responsibility programs, but these are just expressions of good intentions, not mechanisms for accountability,” Imai says.

“If you can imagine, this voluntary system that the mining companies say they have is like having a voluntary code of conduct for drivers, but with no police and no way of taking bad drivers off the road. Everyone can promise that they’ll follow the voluntary code, but when they don’t follow the code, there’s nothing anyone can do about it.”

JCAP tries to do something about it by helping international victims file lawsuits in Canada against companies headquartered here, submitting reports to international bodies such as the United Nations about human rights abuses, and informing securities regulators including the Ontario Securities Commission about harmful actions that aren’t being disclosed to investors.

Reporting instances where a company has not informed shareholders that protests have halted work at a mine (and therefore the company is unlikely to meet its expected production targets), or incidents where people have been killed as a result of actions taken by a mining company, or that Indigenous consent was not obtained before a mine received its permits to operate, are effective actions because publicly traded companies are supposed to disclose information that could affect share prices. When investors realize that they are being kept in the dark, they react – typically in ways that cost the company money and put pressure on its executives to alter the company’s behaviour, Imai says.

Part of JCAP’s mission is to draw attention to the actions of these companies, in part because the Canadian public may be unaware of the conflicts involving Canadian mining companies. 

In a 2022 survey conducted for the Mining Association of Canada, “Roughly 80 per cent of Canadians [gave] Canadian mining companies good or acceptable ratings when it comes to the way they operate in other jurisdictions. This includes measures of how these companies help raise environmental standards and ensure that local communities benefit economically from their mining activities.” 

People and organizations outside of Canada, however, tend to see Canadian mining companies differently. 

In a 2023 report submitted to the Universal Periodic Review (UPR) Working Group of the United Nations Human Rights Council, JCAP wrote that Canadian resource extraction companies are often involved in situations involving “strong community opposition, significant levels of violence and criminalization, and credible evidence of environmental contamination.” 

It added that Canadian government support for these companies has “exacerbated specific conflicts in Guatemala, Peru, Mexico, Ecuador and Honduras, among other countries, and escalated the risk of harm for affected communities and human and environmental rights defenders who face threats, kidnappings, and assassinations.” 

The document also noted that international agencies and treaty bodies are concerned about the actions of Canadian mining companies working abroad.

JCAP research assistants continuously investigate and report on issues of corruption, human rights abuses and environmental harm caused by Canadian mining companies operating abroad, including in Africa. These investigations often uncover sobering details about corporate practices and their impact on local communities and environments. While specific findings remain confidential until publication, the reports consistently highlight the need for greater accountability in the international mining sector.

In addition to investigative reports, JCAP also supports legal actions. One such case involves a lawsuit launched in Canada by the family of a Mexican mining protester who, according to Imai, was allegedly “assassinated in broad daylight.”

The issues JCAP tackles are often lengthy, complicated and lack neat resolutions. However, Imai emphasizes the importance of the work: “It’s crucial for communities engaged in disputes with mining companies to feel like there’s somebody involved, that gives them support.”

Board member Angela D’Elia Decembrini, an Indigenous-rights lawyer with her own practice, reinforces this commitment to supporting affected communities.

“I am in private practice, focusing on the rights of Indigenous people,” Decembrini says, “but I am continuing my association with JCAP because we fill an important niche by assisting communities affected by mining. Many communities in Latin America and Africa do not have representation, while the mining companies they deal with have high-paid lawyers advising them.”

JCAP’s other board members include Charis Kamphuis (LLM ’11, PhD ’20), Kate Gunn (LLB ’08), Sara Ghebremusse (PhD ’20), Bernadette Maheandiran (JD ’09), and Leah Gardner, who completed Osgoode Hall’s Intensive Program in Indigenous Lands, Resources and Governments in 2015.

With such a diverse and experienced team in place, JCAP persistently addresses complex, long-term challenges in corporate accountability. Their efforts, while often facing significant obstacles, are guided by a broader perspective on social change.

“What we can do,” Imai says, “is very limited, but I have to say, I take the big, long view of this. When I started practicing law in 1980, there was hardly any law around Indigenous people…. Now, 40 years later, it has really changed. I’m not saying that things have been resolved perfectly, but there’s a lot more consciousness, and there’s a lot more lawyers in the field, there’s a lot more concern among politicians and awareness among the public about Indigenous issues. And I see that happening here.” ■