[m2c] Taking Stock of Canada’s Mining Industry: Ecuadorian Landmark Lawsuit Challenges Canadian Mining Impunity

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http://upsidedownworld.org/main/ecuador-archives-49/2485--taking-stock-of-canadas-mining-industry-ecuadorian-landmark-lawsuit-challenges-canadian-mining-impunity

Taking Stock of Canada’s Mining Industry: Ecuadorian Landmark Lawsuit
Challenges Canadian Mining Impunity

Written by Jennifer Moore   
Tuesday, 11 May 2010 05:50
Source: Briarpatch Magazine

Marcia Ramírez hopes to set a precedent in Canadian courts that will
benefit peasant farmers and indigenous peoples across the Global
South.

A community leader in her mid-20s, Ramírez is one of three Ecuadorian
plaintiffs suing the Toronto Stock Exchange for over $1.5 billion. The
lawsuit alleges that violence in their rural community could have been
avoided had the TSX not listed the Copper Mesa Mining Corporation
(formerly Ascendant Copper), which is also named in the lawsuit. The
TSX Group and TSX Inc. are accused of causing or materially
contributing to alleged violence committed by the company in response
to local opposition to an open-pit copper mine. An environmental
impact study had indicated that the mine would displace several
communities and jeopardize the health of forests and rivers in the
northwestern valley of Intag. The defendants have vigorously denied
the allegations.

“I ask the noble people of Canada,” Ramírez stated in her comments
when the civil suit was filed in March 2009, “that you demand from
your elected authorities significant changes in your national
legislation so that what has happened with Copper Mesa in Intag will
never happen again, not in Intag nor in any other part of the world.”

The TSX is a principal source of global mining financing today and
specializes in services for junior mining companies like Copper Mesa.
According to the Mining Association of Canada, 55 per cent of the
world’s publicly traded mining companies were listed on the TSX at the
end of 2008, far more than any other stock exchange. Canadian stock
exchanges also provided 31 per cent of the world’s mining equity and
handled 81 per cent of financing transactions for the global mining
industry between 2004 and 2009.

In Latin America, a prime target for Canadian mining investments,
Canadian-listed companies operate roughly 1,400 projects and have been
the focal point of widespread protests and human rights abuses
throughout the region. Just in the past year, anti-mining activists
have been reported killed in Mexico, El Salvador and Guatemala in
presumed relation to Canadian projects. In Argentina and Honduras,
Canadian operations have led to complaints of water scarcity,
contamination and illness. In Peru, a Canadian mining operation has
provoked opposition among northern Amazonian peoples who question why
a national park intended to protect their territory was reduced by
half, giving miners access to pristine forests in headwaters of great
importance to them. Alleged human rights violations and abuses by such
companies are seldom investigated and almost never brought to justice.

As a result, Canadian mining companies have developed a reputation for
human rights violations and environmental devastation that even the
United Nations Committee on the Elimination of Racism has complained
about. Members of the Canadian Network on Corporate Accountability
were also dismayed when the government released a belated response to
a series of public recommendations on the Canadian overseas extractive
industry in March 2009 that only reaffirmed its commitment to the
status quo: voluntary Corporate Social Responsibility guidelines. The
government’s position “falls far short of international human rights
norms,” said Amnesty International. KAIROS, a faith-based organization
advocating for human rights, ecological and ecumenical justice,
complained that Canada leaves “mining-affected communities with no
recourse.” MiningWatch added that the government’s complaint mechanism
“undermines the principle of independent fact-finding.” One survey of
Canadian mining companies has also demonstrated that adherence to
international standards by our overseas extractive industry is
“inordinately” low, especially among junior mining companies.

In other words, voluntary principles are not enough.

Intag, Ecuador, says no

The Ecuadorian community of Intag has a long history of opposition to
large-scale copper mining, beginning with the expulsion of a Japanese
mining company in the 1990s. In 1997, Bishi Metals left the area when
locals balked after obtaining a copy of its environmental impact
assessment, which detailed how its projected open-pit mine would cause
deforestation, dry up rivers and displace at least four local
communities.

Following this victory, Intag continued organizing, aware that
although Bishi was gone, the copper remained. Various initiatives were
undertaken to demonstrate that Intag could live without mining,
including a local conservation organization, an ecotourism project, a
women’s committee, a committee of all the rural parishes in the
valley, a coffee co-operative, a community newspaper, a local radio
station and a community development association.

By the time Copper Mesa acquired mineral rights in Intag in 2004, it
was local organizations rather than the technical challenges of
working in the remote area that would prove to be its greatest
obstacle. As a result of the strong collective response, the company
never managed to get a drill in the ground.

According to Polivio Pérez, president of the Community Development
Council for the rural parish in which Copper Mesa’s project is
situated, “the company came in trying to buy support and divide the
communities” in an effort to weaken local resistance. When it could
not gain enough support, he continues, “they tried to enter by force.”

Prior to listing the company in 2005, the TSX was warned that violence
and human rights abuses could result from facilitating access to
capital. Human rights abuses had already been documented by the
well-respected Ecumenical Human Rights Commission in Quito (CEDHU),
including physical mistreatment, death threats, persecution, slander,
false charges against community leaders and intimidation. Such
concerns motivated the county mayor to write a letter to the finance
and audit committee of the TSX urging them not to list the company.
The company’s own prospectus, which the stock exchange requires of
companies before they are listed, also indicated “the potential of
further escalating violence” given existing problems with its
community relations in Intag.

It was no surprise, then, that things heated up once the company was
listed and started raising funds.

The worst incident, both Ramírez and Pérez agree, occurred in December
2006 when heavily armed security guards were hired to reach the
company’s mineral claims and set up camp.

Villagers blocked the only access road to the potential mining site
with a single-link chain and stood guard. A sign posted on a nearby
tree read: “Mining companies are prohibited here. We don’t sell our
land, we defend it.”

The residents, including men, women and children, refused to let the
private security agents pass. But the guards were impervious to their
arguments and began to fire their weapons and to spray Ramírez and
others at close range with tear gas. Israel Pérez, the third plaintiff
in the case and Polivio’s brother, was shot and injured in the leg.

In response, local residents successfully carried out a peaceful
citizen’s arrest and the guards were held in a local church for
several days until local authorities arrived. “Despite being assaulted
with tear gas and bullets,” says Polivio Pérez, “we were able to
demonstrate once again the strength of our local organization and our
decisiveness [against mining] here.”

The incident was captured on film by two German journalism students
and is featured in Malcolm Rogge’s 2008 film Under Rich Earth.
Ultimately, government authorities suspended the project and declared
that they were unable to process the company’s environmental impact
assessment.

Months later, after company directors had been personally informed
about the December events and persisting tensions, individuals
believed to be linked to the company assaulted and uttered death
threats against Polivio Pérez. The statement of claim for the lawsuit
alleges that the directors could have done more to avoid further
confrontations, such as actually signing and implementing the
“Voluntary Principles on Security and Human Rights” that the company
publicly purported to respect.

Challenging Canada’s “judicial paradise”

The Toronto-based Klippenstein legal firm, best known for its defence
of the Dudley George family against the province of Ontario, is
representing the Ecuadorian villagers in their suit against the TSX
and Copper Mesa. Their lawsuit, Murray Klippenstein says, seeks “the
same level of corporate accountability that is expected in all other
areas of Canadian life.” He anticipates a tough battle.

In 1997, the last time a mining company was sued in Canada, the
plaintiffs were told to go elsewhere. Twenty-three thousand Guyanese
villagers filed a class-action lawsuit against Cambior after the
collapse of its tailings dam at the Omai Mine, which polluted their
water supply. But the Quebec Superior Court ruled that it was not the
best jurisdiction for the case. When the suit was later filed in
Guyana, it was dismissed and the plaintiffs were ordered to pay the
defendant’s legal costs.

In order to address jurisdictional issues, explains Klippenstein, the
Intag lawsuit focuses on decisions that stock exchange and company
executives made in Ontario, “rather than on the finger that pulled the
trigger in Ecuador.”

This aspect of the legal strategy appears to be working. The Toronto
lawyer says that the TSX and Copper Mesa have decided not to challenge
the Ontario court jurisdiction. This puts them one step ahead and
potentially trims years off the time they might have spent in legal
battles before going to trial.

However, it is not just the reticence of Canadian courts to deal with
cases of abuse beyond our own borders that this case aims to confront,
but also the skittishness of an entire industry to subject itself to
legal oversight.

Given the weak reporting requirements for listing on the TSX and the
lack of relevant legislation in Canada, author Alain Deneault calls
Canada a “judicial paradise” for our overseas mining industry.
“Listing on the Toronto Stock Exchange,” writes Deneault, who
co-authored an exposé of Canadian mining abuses in Africa entitled
Noir Canada, “is a way of seeking shelter in one of the more
permissive stock exchanges in the world, while taking advantage of the
reputation of the rule of law in Canada – all the while knowing that
one is outside of state control and regulation when operating
overseas.”

The Toronto Stock Exchange openly markets itself to companies hoping
to work in areas with weak governmental institutions and vulnerability
to conflict and violence. Its own online promotional materials give
the example of the Democratic Republic of Congo as one potential site
for which it can help companies raise financing.

In other words, the Intag lawsuit is just the tip of the iceberg. Just
as Klippenstein’s legal team will argue that members of Copper Mesa’s
board of directors and the TSX had significant prior indications that
further violence and human rights abuses could result from listing
Copper Mesa Mining, it is highly possible that a plethora of other
such cases exist for which this lawsuit could set an important
precedent. Coincidentally, the same year that Copper Mesa was listed,
La Presse reported that another junior mining company was allegedly
implicated in the massacre of about 100 Congolese civilians.

Great expectations

MiningWatch Canada is a coalition of 18 faith, social justice,
indigenous and union organizations. Communications and Outreach
Coordinator Jamie Kneen told Briarpatch that if the lawsuit succeeds
it could really “open the door” for other communities that have been
harmed as a result of Canadian mining operations. From the Congo to
Papua New Guinea to Guatemala, people who have faced illegal land
appropriations, forced relocation, water contamination, threats or
even murder could sue.

The lack of suitable mechanisms for addressing such disputes in Canada
has also drawn the attention of parliamentarians and legal experts.
Recently, Supreme Court Justice Ian Binnie, speaking at the 2008
Canadian Bar Association conference, urged Canada to draw up new
legislation that would provide a forum for foreign citizens and
companies to have such cases heard. In the spring of 2009, two Members
of Parliament initiated attempts at legislative reform by tabling
private member’s bills. NDP MP Peter Julian’s Bill C-354 aimed to
replicate the U.S. Alien Tort Claims Act, which allows foreign
citizens to fight global human rights violations in U.S. courts, while
Liberal MP John McKay’s Bill C-300 would make public financing for the
extractive industry subject to government oversight. Up against a
fierce industry lobby and government opposition, both bills were
stalled when Parliament was prorogued.

“It’s not fair,” says Ramírez, “that a foreign company comes onto our
land and violates our rights, when all we want is to live in a clean
environment and to defend our water and our land.” She hopes, after
the procedural battles are over, for a cathartic day in court when
“the stock exchange will listen and understand that we’ve been hurt by
a company of theirs.”

Ramírez, the other plaintiffs and the legal team will face a tough
fight. But the underlying principle of their case is straightforward,
says Klippenstein: “You shouldn’t harm somebody and you shouldn’t use
your money to hire someone whom you know is likely to do harm” – a
golden rule that Canadians would likely agree to in any other
circumstances.

However, only time will tell whether Canadian courts are prepared to
hear Ramírez’s voice and those of many others calling for a 180-degree
turnaround in a sector rife with human rights and environmental
abuses.

-- 
"Until all of us are free, the few who think they are remain tainted 
with enslavement." Lee Maracle
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