Monday, October 18, 2010

Canada's Role in Exterritoriality Environmental Liability Issues

Just over a week ago, I had the honour of attending the International Bar Association's Annual Conference in Vancouver as a panel speaker on the topic of Establishing National Young Lawyers' Associations and discussed how social media could play a useful role in that process (procrastination can apparently be considered useful). While participating on this panel was a definite highlight of the week, there was another aspect of the conference that left an indelible impression on me.

As a "young" lawyer, I was given the privilege of undertaking the role of rapporteur (fancy law-speak for "note-taker") during a full-day session on the issue of Environmental Responsibility of Resource Companies Under Host Country and Home Country Laws put on by the IBA's Section on Energy, Environment, Natural Resources and Infrastructure Law (lawyers are huge fans of long names for their committees). I do not profess to have any expertise in this area of law, but as my friends will note that has never stopped me from spouting my thoughts.

And I thought this was an incredible session co-chaired by experienced lawyers David Estrin of Toronto and Eugene E. Smary from Grand Rapids, Michigan. They assembled an international panel of legal and non-legal speakers that:
  • brought first-hand accounts of environmental and access to justice challenges in developing countries that host foreign-based resource development with an emotionally stirring focus on the plight of residents in the Niger delta;
  • discussed cases in EU, US and Canadian courts arising from host country environmental contamination claims in Africa, Southeast Asia and South America;
  • provided a platform for the mining and petroleum industry perspective; and
  • discussed the need for and efficacy of a Canadian private member's called Bill C-300 "An Act Respecting Corporate Accountability for the Activities of Mining, Oil or Gas Corporations in Developing Countries".
The gist of the panel discussion was to review the growing rationale for greater access to justice based on international law principles and identify plausible mechanisms for achieving this for host country environmental claims. These jurisdictions are seeking not only more accessible statutory and civil remedies in the home countries of resource companies, but also the potential enforcement of home country environmental standards within host country boundaries. The issue arrived on the IBA's radar at the 2009 annual conference where Nigerian members spearheaded addressing this significant challenge facing their citizens and others living in the developing world.

The stirring case for action was articulated by the Nigerian representatives who punctuated their point with the presentation of this video created by Friends of the Earth:



Canada has a special role to play in the development of extraterritorial liability for resource-extraction companies for at least two reasons:
  • according to the speakers, 75% of global exploration and mining companies are represented on Canadian stock exchanges while many also have their head offices here; and
  • Canada has become a laboratory for holding these companies accountable.
Two recent developments may have resource extraction companies taking note of how Canada is treating their actions abroad. First, in a novel case, at least one Canadian-based company (Copper Mesa Mining), and the stock exchange that listed it (Toronto Stock Exchange), has been taken to court in Canada for allegedly encouraging its security forces to assault local citizens in Ecuador where the latter group opposed the company's proposed open pit mine. While the case was dismissed by an Ontario court in May 2010, the plaintiffs' lawyer Murray Klippenstein has been instructed to appeal the decision.

Second, Bill C-300 is winding its way through the federal parliament with the intent of promoting responsible environmental practices and international human rights standards among Canadian-based resource extraction firms. It would deprive companies that fail to live up to these standards from accessing any support (e.g. grants) from the Government of Canada. However, the panelists agreed that the greatest threat would be reputational to any company found violating its obligations under the proposed statute.

For more information on Bill C-300 and the broader extraterritoriality issue, click here for the National Roundtable's report on Corporate Social Responsibility and the Canadian Extractive Industry in Developing Countries or check out the amazing work of Professors Richard Janda and Sara Seck.

Having spent the past year focusing on renewable energy from a corporate/commercial perspective, it was a nice shift to get some of my human rights juices flowing again at this session as I found myself a mass MSN conversation away from making me feel as though I was back in law school.

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