Monthly Archives: June 2014

First Nation land decision will affect Ring of Fire: NAN

CBC News Posted: Jun 27, 2014 9:10 AM ETLast Updated: Jun 27, 2014 10:39 AM ET

(The Canadian Press)

Nishnawbe Aski Nation says a landmark court decision will significantly impact development of the Ring of Fire.

The Supreme Court of Canada ruled Thursday that a BC First Nation has control over 1,700 square kilometres in its traditional territory.

NAN Grand Chief Harvey Yesno said the ruling sends a strong message that the government must recognize and respect Aboriginal title and deal honourably with First Nations.

“There’s a number of First Nations that are in land claims negotiations,” he said.

si-harvey-yesno-220

Nishnawbe Aski Nation Grand Chief Harvey Yesno says he expects widespread implications to come from yesterday’s Supreme Court of Canada ruling. He says it’s a positive step for First Nations’ control over their traditional territories. (CBC)

“I’m hoping it’ll be a positive impact to settle or accelerate.”

That includes the much-talked-about chromite-rich mining area known as the Ring of Fire, located in the James Bay Lowlands of northern Ontario.

“There’s no question that this ruling is creating, I think, a reason … to enhance the positions that First Nations have been taking,” Yesno said.

Northern Development and Mines minister Michael Gravelle said the province will review the ruling.

But he noted there’s a significant difference between BC and Ontario because, unlike the Ring of Fire, the BC land in question doesn’t fall under a treaty.

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Northern Development and Mines minister Michael Gravelle says the province will review the ruling. (Ontario government)

“Regardless, I certainly recognize — as does our government — how important it is to meet, if not exceed, our duty to consult, [and] work as closely as we can with our First Nations … and our Aboriginal peoples on all major projects.”

Still, Ontario might need to do more than consult, as the Supreme Court decision places a greater burden on governments to get consent — or justify — development on Aboriginal land.

SOURCE: http://www.cbc.ca/news/canada/thunder-bay/first-nation-land-decision-will-affect-ring-of-fire-nan-1.2689541

 

 

 

Human Rights Organisations urge Canada to take action against corporate abuse in Ecuador

Last Update 27 June 2014

Forced displacement and other abuses by Corriente Resources mining company in the Ecuadorian Amazon: Joint statement by FIDH, CEDHU and Mining Watch Canada.

Paris, Quito, Ottawa, 27 June 2014

Eleven months after submitting a complaint to the Canadian National Contact Point for the OECD Guidelines for Multinational Entreprises in Ottawa, FIDH, its member organisation in Ecuador CEDHU and MiningWatch Canada, representing a group of peasants and indigenous people affected by the first large-scale mining contract in Ecuador, urge the Canadian National Contact Point (NCP) to immediately proceed with the case. These organisations denounce the Canadian NCP’s lengthy delay in processing the complaint at the same time as the Organization for Economic Cooperation and Development (OECD)’s Global Forum on Responsible Business Conduct is taking place in Paris.

On July 25th, 2013, FIDH, CEDHU and MiningWatch Canada filed a complaint with the Canadian NCP responsible for implementing the OECD Guidelines for Multinational Enterprises, denouncing the adverse impacts on human rights and the environment generated by the activities of the company Corriente Resources and its Ecuadorian subsidiary EcuaCorriente S.A. (ECSA) in the Ecuadorian Amazon.

“In the past couple of months, dozens of farmer families have organised and are denouncing new irregularities committed by the company in its eagerness to occupy land to carry out mining activities. These include militarization of the area, destruction of a chapel and displacement of a school, despite residents’ protests. A response from Canada is urgently needed with regard to the serious human rights violations that have occurred and that continue to occur in this case”, states Elsie Monge, Executive Director of the Ecumenical Human Rights Commission of Ecuador (CEDHU) and Vice President of FIDH.

The complaint alleges that the Mirador mining project has already led to the forced displacement of dozens of families from their homes and land, and may cause irreparable damage to the rural and indigenous communities living in the area. The plaintiffs request that the human rights of affected communities be respected, including: indigenous peoples’ right to self-determination and to free, prior and informed consent; the general population’s right to live in a healthy and pollution-free environment, as recognized in both national and international law; as well as respect for “good living” or “sumak kawsay” as enshrined in the Ecuadorian Constitution.

“According to the Canadian NCP’s procedures, the initial assessment of a complaint should take about three months. However, we have been waiting almost a year to find out whether or not they will accept the complaint. This delay is unacceptable, especially as the situation continues to worsen in Ecuador” , remarked Karim Lahidji, President of FIDH.

After several attempts to access justice in Ecuador, and given the imminent and potentially irreparable damage to communities and the environment as a result of the mining project, the group of organisations saw no other option than to bring the complaint to Canada.

The complainants hope the Canadian National Contact Point will admit the complaint and conduct an investigation to determine whether the company has complied with the OECD Guidelines, which establish that companies should respect human rights, and that the NCP will issue appropriate recommendations.

SOURCE: http://www.fidh.org/en/globalisation-human-rights/15662-human-rights-organisations-urge-canada-to-take-action-against-corporate

Brazil revokes Canadian Belo Sun’s license to gold mine in Amazon

Cecilia Jamasmie | June 26, 2014

Ruling says Belo Sun Mining Corp. has failed to study the impact on Amazon communities.

A Brazilian federal court has revoked Canadian miner Belo Sun Mining’s (TSX:BSX) license for the Volta Grande project, which would have become the country’s largest gold mine, in the Amazonic state of Para.

The ruling, which established the miner failed to assess the impact on local indigenous communities, is a major blow to Belo Sun’s ambitions, Amazon Watch’s Brazil Program Consultant Christian Poirier told MINING.com.

the court decision sets a considerably higher legal standard for environmental licenses, but—since it is appealable— could be easily overturned.

He added the court decision sets a considerably higher legal standard for environmental licenses, but—since it is appealable— could be easily overturned.

In a brief statement, the Toronto-based company only said it had been asked to complete an indigenous study in accordance with the reference terms of FUNAI, the Brazilian indigenous authority.

It added the company expects the study will take five months and that it anticipates receiving the authorization from FUNAI to access the indigenous lands shortly.

READ ALSO: Brazil a step closer to fully mining the Amazon

The $750 million Volta Grande, or Big Bend, open-pit project is on the Xingu River, a tributary of the Amazon. It is expected to produce more than 300,000 ounces per annum over its 10-year life.

Opponents of the project, suspended since November, fear its vicinity to the controversial Belo Monte dam complex —which is designed to become the world’s third largest dam— “may lead to devastating and irreversible consequences … for the quality of life and cultural heritage of indigenous peoples and their territories.”

Brazil revokes Canadian Belo Sun’s license to gold mine in Amazon

Volta Grande is supposed to begin operating in 2016. Shares in Belo Sun were down almost 10% to 0.185 at 12:23 pm ET.

Main opponent of Newmont’s gold project in Peru in prison

Cecilia Jamasmie | June 26, 2014

Main opponent of Newmont's gold project in Peru in prison

Protest at Conga mine, October 2013.

Peru’s Cajamarca region governor Gregorio Santos, who has led opposition to Newmont Mining‘s (NYSE:NEM), (TSX:NMC) $5 billion Conga copper and gold project, was ordered to jail for 14 months amid a corruption probe.

A federal judge authorized the detention Wednesday while prosecutors prepare their case, state news agency Andina reported (in Spanish).

Santos is suspected of having received bribes from companies in exchange for awarding 11 local public work contracts. If found guilty, he won’t be allowed to run for re-election in October, which would likely unlock mining investment in the region, such as the stalled Conga project.

The governor’s press advisor, Segundo Matta-Colunche, told Associated Press (in Spanish) that ever since Santos spoke up against Newmont’s proposed gold mine in 2011, the government began a campaign against him. This included 38 prosecution cases for various offenses, of which 35 have already been withdrawn for lack of evidence.

Main opponent of Newmont's gold project in Peru in prison

The Conga project, located roughly 3,700 meters above sea level, was approved in 2010 by then-president Alan Garcia’s government, and the current administration has continued to support it.

Originally scheduled to begin production next year, the mine will be developed in partnership with locals Buenaventura and Minera Yanacocha.

Conga was basically designed as an extension of Peru’s Buenaventura’s nearby Yanacocha mine. That is Latin America’s largest gold mine and it is approaching the end of its life.

Newmont decided to halt Conga’s construction work in November 2011 after violent protests in the northern Peru region forced the government to declare a state of emergency.

Social pressure continued during 2012, with Peru’s government hiring international consultants to report on report on the viability of the water strategy proposed by the company and, eventually, ordering order a suspension of all work at the site, except for the construction of water reservoirs.

The project has the potential to generate up to 350,000 ounces of gold and 120 million pounds of copper a year, during its 19-year life. If it goes ahead it’d be the largest-ever single private investment in the South American country.

This man says Canadians need to know what’s in their government pension plan and what demanding justice cost him

First in a three part series.

Economic Power, Democracy and Human Rights: A New International Debate on Human Rights and Corporations

Gonzalo Berrón

The 26th Session of the United Nations Human Rights Council (UNHRC) opened in Geneva on June 10th. A major focus on the UNHRC agenda is the issue of binding regulations for Transnational Corporations (TNCs). This demand has been raised by Ecuador and 84 other governments in a Statement to the UNHRC last September 2013.

The urgent need for such a Binding Treaty has been on the agenda of social movements and human rights organisations for a long time who have recently converged in a Treaty Alliance whose statement is supported by more than 500 movements and networks from all regions of the world. There are indications that this demand for a Binding Treaty on TNCs will be a matter of intense negotiations at the UNHRC (as some governments including the US and the EU, seem determined to block this demand. This article places the political tensions converging in Geneva in the context of the broader agenda of corporate capture of political power and the privatisation of democracy.

Economic interests in contemporary global capitalism: a new phase in the privatisation of democracy

We are currently in a phase of global capitalism where certain tendencies appear to be converging to conspire against the ability of several generations to exercise democracy and human rights. On the one hand, the growing concentration of private economic power is overlapping the old North-South geopolitical division and is expressed at the global level in the form of transnational “mega-corporations” and the arrival of the “translatinas”1 and other corporations based in “emerging” economies. On the other hand, there is a new kind of interdependence between the world of money and the world of politics in what some describe as “corporate capture”, or the capture of politics/democracy by economic power. These phenomena cannot be simply reduced to the participation of the “rich” in politics – the old Weberian plutocracy.

Instead, they are the result of greater promiscuity between both worlds due to the dependency of politicians in competitive democratic systems. In other words, politicians’ chances of getting elected depend on the economic means at their disposal for election campaigns, while their performance in positions of power (executive and legislative) is conditioned by the commitments they make to guarantee their re-election or a “dignified withdrawal” from public service. Several former European premieres currently act as consultants for major corporations. The growth of economic power arising from its concentration also has impacts on the international level: these mechanisms of capture can also be found in international institutions2. Furthermore, to the traditional geopolitical calculations of power on the international scene, one can add the economic calculations of actors from the business world who have organically penetrated mechanisms of the so-called “global governance”. They do so actively through the construction of what some call the “architecture of impunity”3 – a framework of free trade agreements and investment treaties, and laws that expand the rights of “businesses” – or by directly occupying positions in international institutions, or exerting pressure via national governments defending the economic interests of their corporations4.

Hyper-concentration, the “1%” and rights

Popularised after the 2008 crisis as the “1%”, the high concentration of wealth, property and decision-making power in the hands of an increasingly smaller number of actors has been the focus of a growing number of studies published in recent years. If we examine each of these three dimensions, in terms of the concentration of wealth, recent studies report that in the United States, 1% of the population owns 45% of total wealth5. According to ECLAC, in Latin America, the “richest quintile owns on average 46%, which ranges from 35% (in Uruguay) to 55% (in Brazil)”6. In Europe, in 2012, the income of the 20% of the population with the highest income was 5.1 times higher than that of the 20% of the population with the lowest income; in 2003, this ratio was 4.67. As for the ownership of corporations, the famous ETH Zurich study showed that the global network of companies is currently managed by 17 mega-corporations9.

The intensification of certain changes in the morphology of corporate management and ownership has implications for decision-making processes, which increase the probability that human rights violations will occur. Investment funds and the idea of mega-corporations (corporations that are owners of corporations, which are owners of other corporations, and so forth) render responsibility for decision-making increasingly invisible and distance even more those who make decisions from those who are directly affected by them. Moreover, outsourcing the management of corporations by hiring CEOs and executives has the added effect of diluting responsibility and immunizing corporations’ real owners against the illegal acts of their managers. The second aspect of this morphology is the pressure to earn profit either through the economic performance of the funds – in which, paradoxically, active and retired workers own bonds – or the performance of executive directors whose success depends on their ability to generate more and more profit.

Political and social actions and responses

We are not dealing with an entirely new phenomenon, but rather a configuration of contemporary capitalism that, as it consolidates in this new morphology, generates distinct and novel effects and reactions. In the process of defending their rights, new and old affected actors – workers, users and consumers, people in general, communities and even States – identify the different types of responsibility involved. They also help to elaborate on the type of problems, gaps and shortcomings that exist in the legal systems that are supposed to protect them. In countries like Brazil, there is a growing social awareness on the role of the abuses of international economic power, due to the privatisations in the 1990s, the globalisation of investments and emblematic cases of corruption and environmental disasters. Similar impacts of corporate operations are also hitting public consciousness – such as massive layoffs and the flexibilisation of labour through relocation (or the threat to relocate), and more recently, the aggressive role of investment and corporations in “extractivist”10 complexes (agricultural or mineral) and pressure on the environment and natural resources.

In Brazil, the introduction of genetically modified organisms, the Forestry Code reform, the debate on the Mining Code, initiatives to change the method used to demarcate indigenous land, the construction of massive infrastructure projects, and tax exemptions are but some of the manifestations of economic pressure on the State that affect people’s rights. The recent case of hosting the Soccer World Cup provides cross cutting exposure of some of the most perverse forms of this phenomenon: violations of state sovereignty by obliging the State to adopt reforms to laws and imposing demands for tax exemptions that are exclusively for the FIFA (laws 12.663 and 12.350); the explosion of infrastructure projects and pressures to meet deadlines that left public administrators in the hands of construction firms, as authorities were forced to accept their exorbitant over pricing, while the supposed beneficial legacy of these works – that is, new social and transportation infrastructure and benefits for urban areas in general – took the back seat. Government authorities also failed to stop the displacement of neighbourhoods and major increases in stadium entrance fees, which have resulted in the privatisation of access to sports stadia that previously were accessible to the public.

This increase in social conflict is an expression of the new contradictions emerging in this recent phase of global capitalism. These contradictions are also present in countries whose governments emerged as a political response to the period immediately prior to the current one, dominated by the hegemony of the so-called Washington Consensus. Though not entirely removed from the resistance movements of that period, new struggles can be characterised as being in direct confrontation with capital, whose systemic responsibility was emblematically exposed by the crisis that erupted in 2008. And, as in the previous period, this conflict is developing on several levels: within States and on the international scene, which I will address below.

The “Ruggie peace” lasted only 3 years: new tensions in the international debate on human rights and corporations

Not long after the victory of corporate interests in the last major round of discussions on the issue of “human rights and business” in the UN, the system is currently in the midst of a new debate that gives hope to those who defend binding rules for corporations. Currently, the UN system has the “Guiding Principles”, approved by the UN Human Rights Council (UNHRC) in 2011. These principles developed in the period 2006-2011, were presented to the UN in the “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” report, by the Special Representative of the UN Secretary General, John Ruggie. Defended by “optimists”, these Guiding Principles (GPs) are general voluntary guidelines on human rights and corporations. They are organised into the three pillars: “protect, respect and remedy”. In 2011, in addition to adopting the guidelines, the Council resolved to implement a program to promote them. This program includes various actions and the creation of a Working Group composed of 5 experts (chosen according to the usual UN criteria and balancing “business” affinities with academic and social ones. Among these actions, it is worth highlighting national implementation plans and annual and regional forums. The resolution gave the working group a three-year mandate, which ends in June 201411.

The Working Group began its work in what appeared to be a period of calm surrounding the “implementation” of the GPs. However, “Ruggie’s peace” came to an abrupt end: in September 2013, when Ecuador, together with another 84 governments12, presented a declaration, in which these governments affirm that:

“The endorsement by the UN Human Rights Council in June 2011 of the “Guiding Principles on Business and Human Rights: Implementing the United Nations Protect, Respect, and Remedy Framework” was a first step, but without a legally binding instrument, it will remain only as such: a “first step” without further consequence. A legally binding instrument would provide the framework for enhanced State action to protect rights and prevent the occurrence of violations.”13

This declaration reopens the 40-year debate on the need to effectively regulate the operations and conduct of corporations and protect people and communities from the violations they commit. In this dispute and conflict of interests, corporations and the governments that protect them have won all of the battles so far, blocking attempts to get initiatives on binding norms approved14. At the same time, as a way to draw attention away from what really counts in terms of protections, corporations promote various initiatives on soft or voluntary codes. These codes, like “corporate social responsibility”, offer a response to society that aims to downplay both the exorbitant profits and wealth they obtain from their activities and the violations they usually commit to obtain it.

Those who defend the Ruggie process argue that one has to give the Guiding Principles time and that now is not the time to start discussing this issue again. They try to deny that Ecuador’s declaration expresses a demand, always present in society, for the establishment of control over those whose irresponsible actions are seen as being responsible for the global crises (financial, economic, social, energy, environmental and food prices). To defend their position, GP defendants use four main arguments, almost all based on practical or pragmatic issues:

  • 1- The consensus that was possible: the voluntary GPs are an important advance in relation to what there was before. For the first time, the UN unanimously adopted norms on “business and human rights”. This was the consensus that it was possible to attain and we must respect it. It is not possible to go beyond this point.
  • 2- Complexity: Generating binding rules for corporations is a Herculean task and, due to the complexity of the international system, it is practically impossible to do.
  • 3- Implementation: Since this is such a complex task, initiating a negotiating process that could take years would reduce efforts to effectively implement the Ruggie Principles and, along with it, delay the concrete, albeit voluntary, enforcement of human rights in situations where they are violated.
  • 4- It is the responsibility of nation-states: it is ultimately states that must ensure that human rights are respected in their jurisdictions. The role of the international community, as the Guiding Principles indicate, is to help strengthen their capacity to enforce them. Therefore, these voluntary principles are sufficient.

One can surely add to this list the arguments that diplomats in New York or Geneva do not reveal in public. Their arguments are undoubtedly much more pragmatic and real than the ones listed above, and are related to the obstacles that this type of legislation could create for the free circulation of investment and further market liberalisation. As for host countries, the majority being the poorest or developing countries, they are concerned with the risk of corporations being discouraged from investing in their countries if binding obligations are adopted. It is clear that this kind of binding rules goes against the logic that allowed what we referred to earlier as the “architecture of impunity” to be built, as it implies taking a step towards reversing the excessive widening of mechanisms that protect the “rights” of foreign investors – i.e. transnational corporations and international investment funding instruments and mechanisms.

Not only do these arguments ignore the tradition of robust theoretical debates and the principles that have historically characterised the discussion on human rights in international fora, their weak arguments are staggering. How can the international community tolerate this? And how can the members of the UN Working Group on Business and Human Rights who have assumed the defence of the Ruggie Principles as if they were rules set in stone on human rights and corporations.

The first issue we should address is that, by definition, there is no measure of time that indicates when it is an appropriate moment to address an initiative like the one led by Ecuador. Political timing is determined by a set of factors, such as the will of the actors involved. In this case, even though the debate had apparently ended in 2011, there is an important group of States and social organisations that want to put the issue back on the agenda of the UNHRC. Therefore, we can say that we are before a new “moment” – one that demands that the debate on this issue be reopened. The fact that other actors do not want to do so reveals that they are comfortable with the status quo that many – especially the affected communities – have been questioning for the past four decades. What is more, there is nothing preventing advance on both processes simultaneously. In other words, it is possible to discuss a treaty with binding obligations for corporations and promote the Ruggie principles at the same time. The argument on the “consensus that was possible” is also dynamic and depends on the historical context. There are no elements indicating that the world is not mature enough to reach a consensus on stricter enforcement of rules on human rights. Or, to put it differently, the level of tolerance towards the human rights violations of major corporations and their exorbitant profits has fallen in the public opinion, and therefore, there is now less political space to sustain a global laissez faire human rights policy for corporations on the world.

The task of elaborating this kind of Treaty is indeed complex. It implies making decisions on: what crimes are to be judged; about who and what framework will judge them; what the penalties are; how to organize the various branches of human rights; the level of applicability and detail; the extraterritorial application of the law; who is responsible; how to combine this kind of treaty with those already in effect; identifying judicial gaps; and many other issues. It is, without a doubt, a complicated task, yet its complexity does not eliminate the urgent need for it. Protecting people and communities, defending their rights and providing remedy in case of their violation are also complex tasks, but they are just as complex and vital for humanity as the development of a vaccine against AIDS, for example, or finding a cure for cancer. The complexity of these tasks does not make them less urgent or necessary for people. The issue of States’ responsibilities has been examined at great length. By now, everyone knows that where the nation-state falters, only international norms and/or the international community can protect people. Moreover, as Martin Kohr from the South Center15 argues in relation to the abuses of transnational corporations – asymmetry is greater due to the fact that developed countries possess the institutional means they need to more effectively process violators of the law and human rights, and therefore, are able to better enforce the rule of law. Powerful states have a greater capacity to exert control over powerful economic interests in their territory. As for poor countries, with low levels of institutionalisation and States that are weak in comparison to transnational mega-corporations, for example, the defence of peoples’ rights and access to justice are limited. Economic powers are able to use various extra-judicial mechanisms to circumvent the law, escape punishment or make it difficult to enforce sanctions. In the case of the contamination of the Gulf of Mexico, British Petroleum was condemned to paying several billions of dollars in fines by the United States government. The Bophal disaster in India or the recent Chevron case in Ecuador, on the other hand, provide telling examples of the difficulties that the communities affected by violations of human rights face in States with less economic power.

“Shielding” the rights of people, not of corporations

An international armour is needed to help protect people from the asymmetry of power produced by the accumulation of wealth and the political advantages it creates. For this, we must overturn the system mounted through international arbitration tribunals that protect investors’ rights (ICSID and WTO dispute panels) – that is, the rights of major transnational corporations, which are responsible for the majority of international trade and investment flows.

The creation of a legal framework that, through one or more treaties, can serve as an international reference on a new vision on economic and political relations and rights in the contemporary world is fundamental. By doing so, the fight for human rights can provide a fundamental tool that – when complemented by the mobilisations of affected communities and social organisations, movements and networks – can expand the frontier of the applicability of human rights throughout the world.

1. Translatinas refers to transnational corporations from Latin America.
2. Friends of the Earth International, “Reclaim the UN from corporate capture” (2012) and more recently, Oxfam Internacional, “Working for the few. Political capture and economic inequality” (2014).
3. Brennan, Brid and Berrón, Gonzalo “Hacia una respuesta sistemica al capital transnacionalizado”, en Capital Transnacional vs Resistencia de los Pueblos, América Latina en Movimineto, ALAI, Quito, June 2012.
4. Joseph Stiglitz, “On the Wrong Side of Globalization”, New York Times, March 15, 2014, http://opinionator.blogs.nytimes.com/2014/03/15/on-the-wrong-side-of-glo…
5. Wealth inequality in America” by Wondershare https://www.youtube.com/watch?v=QPKKQnijnsM&feature=share
6. “Panorama Economico y Social de la Comunidad de Estados Latinoamericanos y Caribeños, 2013”, ECLAC, January 2014: http://www.cepal.org/publicaciones/xml/7/52077/PanoramaEconomicoySocial.pdf
Data for EU-15, Eurostat: http://epp.eurostat.ec.europa.eu/tgm/table.do?tab=table&plugin=1&languag…
8. Stefania Vitali, James B. Glattfelder, Stefano Battiston “The Network of Global Corporate Control”, 2011
9. They rule, Eles Mandam, Proprietários do Brasil, …
10. For an analysis on “extractivism”, see Gudynas, Eduardo (2009) «Diez tesis urgentes sobre el nuevo extractivismo. Contextos y demandas bajo el progresismo sudamericano actual» en VV.AA, Extractivismo, política y sociedad, CAAP / CLAES, Quito.
11. UN Human Rights Council Resolution 17/4, June 16, 2011.
12. African Group, the group of Arab Countries, Pakistan, Sri Lanka, Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela, Peru and Ecuador
13. “Statement on behalf of a Group of Countries at the 24th Session of the Human Rights Council”, Geneva, September 2013: http://business-humanrights.org/media/documents/statement-unhrc-legally-…
14. The initiative of a UN Code of Conduct for Transnational Corporations (1983) and the Draft Norms on the responsibilities of transnational corporations approved in 2003 by the UN Sub-commission on the Promotion and Protection of Human Rights are of particular importance.
15. Intervention in the Seminar on Transnational Corporations and Human Rights, March 11 and 12, 2014, Palais des Nations, Geneva.

picture from Wikipedia

SOURCE: http://www.tni.org/article/economic-power-democracy-and-human-rights

Nigeria: Shell could face fresh compensation claims after landmark environmental ruling

20 June 2014

Independent experts estimate that more than 4,000 barrels of oil were spilled every day before the pipe in Bodo was clamped.

Independent experts estimate that more than 4,000 barrels of oil were spilled every day before the pipe in Bodo was clamped. © CEHRD

A landmark UK court ruling paves the way for Shell to finally be held accountable for devastating oil pollution in the Niger Delta, Amnesty International said today.

“Today’s ruling is a shot across the bows for Shell” said Audrey Gaughran, Amnesty International’s Director of Global Issues.

“The court’s message is clear – if you don’t take adequate measures to protect your pipelines from tampering, you could be liable for the damages caused.”

In a judgment delivered by Mr Justice Akenhead, the London Technological and Construction Court found that short of providing policing or military defence of its pipelines, Shell was responsible for taking reasonable steps to protect them. This would include measures such as installing leak detection systems, surveillance equipment and anti-tamper equipment.

The ruling has opened the door for Nigerian claimants to demand compensation if oil leaks were a result of sabotage or theft – if the sabotage or theft was due to “neglect on the part of the [licence] holder or his agents, servants or workmen to protect, maintain or repair any work structure or thing.”

Yet within minutes of the judgment being delivered, Shell fired off a press release claiming “senior English judge rules in favour of Shell’s Nigerian subsidiary”.

“Shell’s representation of the facts in this case continues to beggar belief,” said Audrey Gaughran.

“Their response is typical of a company desperate to avoid being held to account for years of failure.”

Shell has consistently refused to disclose the age or condition of its pipeline. For years Shell has blamed the massive oil pollution associated with its operations on theft of oil and other illegal activities. But the company has taken almost no effective action to prevent the theft of oil and secure its pipelines.

In a 2013 report, Bad Information: Oil Spill Investigations in the Niger Delta, Amnesty International exposed many of Shell’s claims on oil pollution in the region as “deeply suspect and often untrue”.

Vulnerable infrastructure has been left exposed to vandalism and theft. And alarmingly, evidence emerged last year to suggest that even Shell’s own contractors may be involved in oil theft.

Today’s decision is an important milestone in the decades-long struggle for justice in the Niger Delta, where pollution associated with Shell’s operations has had an overwhelming impact.

The ruling comes as part of a civil claim brought by people from the Bodo community in the Niger Delta. The community was devastated by two massive spills in 2008 and 2009 from an old and leaking Shell pipeline.

“For more than five years the people of Bodo have been living day by day with the devastating consequences of these spills,” said Joe Westby, Amnesty International’s Corporate Accountability Campaigner, speaking from the court.

“Today’s judgment is an important step towards justice for the deprivations this community has had to suffer.”

Amnesty International has been campaigning since 2009 for Shell to come clean on the environmental damage it has caused, which has destroyed livelihoods and jeopardised the health of thousands of people living near Shell’s oil facilities in the Niger Delta.

SOURCE: http://www.amnesty.org/en/news/nigeria-shell-could-face-fresh-compensation-claims-after-landmark-environmental-ruling-2014-06-

Special Rapporteur on the Rights of Indigenous Peoples – binding regulation on corporate behaviour the “big picture” in protecting the rights of indigenous peoples

See Video (Part 3) World Conference on Indigenous Peoples (Preparatory process) – General Assembly Informal interactive hearings

18 Jun 2014 – – Panel discussion: Indigenous priorities for sustainable development – Closing

Summary

The Special Rapporteur on the Rights of Indigenous Peoples has spoken of her support for binding standards whilst speaking at the World Conference on Indigenous Peoples Interactive Dialogue.

The newly appointed, Vicky Tauli Corpuz, described the lack of proper international regulation on corporate behaviour a “major issue” for indigenous peoples, who are increasingly victims of human rights abuses by corporate entities which they cannot control. The Special Rapporteur then called on states and indigenous peoples to work together to rectify this.

You can watch the full statement here (The Special Rapporteur begins her statement at 7:30 min and speaks on corporate regulation at 19:23 min).

“[Ecuador’s resolution is] a major step because it brings back again the need to have stronger recommendations and regulations that will control the behaviour and regulate the behaviour of major economic entities that are now defining what development should be in our communities.”

— Vicky Tauli Corpuz – Special Rapporteur on the Rights of Indigenous Peoples, speaking at the World Conference on Indigenous Peoples Interactive Dialogue

Vancouver-based Tahoe Resources faces lawsuit over violence at Guatemala mine

Seven men allege they were shot at close range during a peaceful protest

By Derrick Penner, Vancouver Sun June 18, 2014

Vancouver-based Tahoe Resources faces lawsuit over violence at Guatemala mine

A group of men wounded last year during a protest outside a Guatemala mine is suing the Vancouver-based mining company, Tahoe Resources Inc., in British Columbia Supreme Court.
Photograph by: Mark van Manen , Vancouver Sun files

 

A group of men wounded last year during a protest outside a Guatemala mine is suing the Vancouver-based mining company, Tahoe Resources Inc., in British Columbia Supreme Court arguing it should be held liable for the alleged violent action against them.

It is the first time a Canadian company has been sued in B.C. for events that occurred at operations outside of Canada, but it follows from three suits against Toronto-based Hudbay Minerals, which were accepted to proceed to trial by an Ontario Superior Court Judge last year, also related to alleged violent incidents in Guatemala.

Together, the suits are part of increasing efforts of non-government organizations seeking greater accountability from Canadian mining companies operating abroad.

“The plaintiffs feel like they’ve not got justice for what happened to them (in Guatemala),” said Matt Eisenbrandt, legal director for the Canadian Centre for International Justice.

The seven men named in a notice of civil claim allege they were shot at close range during a peaceful protest on a public road outside Tahoe’s Escobal silver mine east of Guatemala City on the evening of April 27, 2013, in what they argue was a planned act of intimidation by the company’s security guards.

The allegations have not been proven, but the men are seeking damages from the company for battery and negligence, arguing that Tahoe either authorized the use of excessive force or was negligent for not preventing the violence or is liable for the security guards’ actions.

The mine’s security manager, Alberto Rotondo, was arrested and faces criminal charges of obstruction of justice, causing injury and mistreatment of a minor, Eisenbrandt said.

However, while that case is underway, the plaintiffs believe Tahoe should also be held accountable. Eisenbrandt said Canada’s formal institutions that regulate Canadian companies abroad are too weak to do the job, so they are seeking damages in a Canadian court.

“At the end of the day, what the plaintiffs are looking for is a judgment from a Canadian court that Tahoe is responsible for what they suffered,” said Eisenbrandt, who is part of the legal team that put the claim together.

The Guatemalan men’s claim was filed by Vancouver lawyer Joe Fiorante of the firm Camp, Fiorante, Matthews, Mogerman. They are represented in Guatemala by the Guatemalan Centre for Legal, Environmental and Social Action.

Tahoe could not be reached for comment Wednesday but in a statement last year disputed the circumstances of the incident, alleging in return that men armed with machetes were approaching the gate at shift change in a hostile act and were turned back by security guards using tear gas and rubber bullets.

However, in the notice of claim, the plaintiffs allege that Rotondo carried out a campaign to undermine and intimidate local opposition to the Escobal project, and further that the security manager, a retired Peruvian Navy Captain, had planned a show of force to do just that on the date in question.

In the claim, the men allege they were shot with buckshot and rubber bullets and suffered injuries to their faces, legs and backs.

Adolfo Garcia was shot in the back while retreating, with the projectile lodging near his spine, the statement of claim says. Luis Monroy was shot in the face, ultimately losing his sense of smell, the document says.

The suit alleges that the shooting constituted battery for which Tahoe should be considered vicariously liable.

Further, it alleges Tahoe had committed to operate under principles of corporate social responsibility to respect human rights, so it had a duty of care to make sure that its employees and contractors abided by those principles and was negligent for failing to do so.

Eisenbrandt said the case is based on straightforward principles and the team is confident that a B.C. court will agree to hear it.

However, Pierre Gratton, CEO of the Mining Association of Canada, said historically courts have ruled that they don’t have jurisdiction over such cases, thought that view is now evolving.

“The general principle of industry, and not just (mining companies), is for justice to be served appropriately, it should be heard in the country where the offence, if there was an offence, took place,” Gratton said.

He added that Canada is in the process of reviewing its existing regulatory process at the Extractive Sector Corporate Social Responsibility Counsellor’s office in the Trade and Development Canada department.

The counsellor’s role is to investigate and mediate grievances between Canadian companies and communities affected by extractive industries. The criticism against that process, Eisenbrandt said, is that it is voluntary and companies don’t have to comply with it.

Gratton said the Mining Association has lobbied the federal government to make participation in the first stage of the CSR counselling process mandatory, which involves investigating and establishing whether grievances are legitimate.

“Companies shouldn’t be able to walk away from it,” he said.

Within the NGO community, however, the view is that the government isn’t interested in strengthening accountability for Canadian companies operating abroad, which is why they are turning to the courts, according to Jennifer Moore, Mining Watch Canada’s coordinator for Latin America.

Moore sees the Tahoe suit as a chance for the seven men to seek redress, but also to bring visibility to their opposition to mining operations in the troubled region in Guatemala.

“(It’s) an important attempt to set a precedent in British Columbia as part of the struggle to have corporate responsibility in this country and consequences for companies whose operations overseas are connected to these abuses we see going on a too regular basis,” Moore said.

depenner@vancouversun.com

Twitter.com/derrickpenner

With files from The Canadian Press

SOURCE: http://www.vancouversun.com/business/Vancouver+based+Tahoe+Resources+faces+lawsuit+over+violence+Guatemala+mine/9952456/story.html

Landmark Suit against Canadian Mining Firm Filed in BC

Human rights group seeks to hold BC-based company liable for shootings at Guatemalan mine.

By Sebastian Salamanca, Today, TheTyee.ca

Escobal mine protesters show wounds

Two Guatemalans who were shot protesting at gates of Escobal mine show their injuries in June 2013, Photo by Giles Clarke.

On a hot day in May of last year, Erick Fernando Castillo, with a stitched wound in his right leg, limped his way to the front row in a courtroom in the small southern Guatemala town of Barberena. Castillo listened intently as the prosecutor played a wiretapped conversation for the judge. In it, an angry male voice orders his men to “clean the weapons.”

“Clean them well,” says the voice. “We say ‘nothing happened here.'” In another wiretap played the voice says, “With shots is that they learn.”

Castillo was among seven people shot on April 27, 2013, when security guards at the Escobal silver mine fired at 20 local villagers protesting the project owned by Tahoe Resources.

The cell phone recordings Castillo had come to hear in court are potentially groundbreaking in Guatemala, and Canada too.

Tahoe Resources Inc. is based in Vancouver, British Columbia. The voice on the tape allegedly belongs to Alberto Rotondo, who was Tahoe’s manager of security in Guatemala when the shootings occurred. Rotondo is slated to be tried in Guatemala on charges of aggravated assault, simple assault and obstruction of justice.

The legal implications of those secretly captured words may soon be tested, as well, in the Canadian justice system.

The Canadian Centre for International Justice, an NGO that brings human rights cases to Canada, has today filed a civil lawsuit in British Columbia’s Supreme Court asking to declare Tahoe Resources legally responsible for the injuries caused to Guatemalan local villagers by the mine’s security on April 2013.

“This case is about bringing justice for the seven men who were shot and for holding Tahoe responsible as a company,” says Matt Eisenbrandt of the Canadian Centre for International Justice.

Tahoe Resources has maintained it is not responsible for any wrongdoing.

The suit, depending on the outcome, could forever change assumptions about how Canada’s international mining sector — the world’s largest — must conduct business overseas.

In recent years, a number of human rights abuses connected to global Canadian mining operations have made headlines but rarely are they investigated, in part because the Canadian legal system hasn’t offered a venue with “real teeth,” as Eisenbrandt puts it.

Similarly, Canadian courts largely have refused to admit lawsuits against Canadian mining corporations for their foreign activities. That may be changing after the Supreme Court of Ontario last July admitted three claims against Toronto-based Hudbay Minerals that allege the company was negligent when it failed to prevent violence against indigenous Guatemalans near its El Estor nickel mine — claims Hudbay Minerals deny.

Eisenbrandt hopes Canadian courts now will be more open to hear these kind of cases: “A victory in a case like this can send a message that the companies that operate abroad need to make sure that they are complying with international standards about interaction with local communities and security operations,” he says.

Controversial mining project

Erick Fernando Castillo quit school after the third grade to work in the coffee and bean fields near his town of San Rafael Las Flores. Now 27, he says he fears the Escobal mine will contaminate local water sources and undermine his family’s livelihood “What are we going to do that day?” Castillo asks.

In 2010, Catholic priests met with environmental NGOs and community leaders from San Rafael Las Flores to discuss the potential impact of Tahoe’s proposed mine near the town. Those discussions led to the creation of the “Committee for the Defense of Life and Peace” in San Rafael, an organization that according to its leader Oscar Morales “has always had the purpose of being the peaceful resistance” against the mining project.

At the same time, members of a Xinca indigenous community located 30 kilometres from San Rafael Las Flores started to oppose the Escobal project as a threat to their land, culture, traditions and sovereignty.

As an agronomist, Oscar Morales was concerned about the project’s impact on local water. The mine uses a lot of it, and Morales worries about acid pollution.

Ira Gostin, Tahoe Resources’ vice president for investor relations, says such concerns are baseless. The process used at Escobal means “there is no acid mine drainage,” and the mine taps a new supply of deep well water that “bypasses the community aquifer” using a closed loop system “treated internally and then recycled back into the plant,” he says.

Gostin also says Tahoe Resources is making sure its engineering operation exceeds the requirements set by the government.

Robert Moran, a mining expert with 40 years of experience around the world including Guatemala, has a different view. The makeup of Guatemala’s volcanic soil means “in the mountainous areas, acid mine drainage is almost always a risk.” And “almost no aquifers are totally isolated from the other aquifers. Sooner or later they are all interconnected.” Closed loop systems, Moran warns, “all leak. They all generate liquid waste and contamination.”

Surrounding communities voted overwhelmingly against the mine in 2011. But the vote was non-binding and Tahoe went ahead.

Gostin says the vote was orchestrated by NGOs “coming in with their own agenda, handing out pre-printed ballots and providing lunch for everybody that votes against the mine. Not a very objective referendum.”

There is much local support for Escobal, says Gostin, given the mine employs 850 workers, almost all living nearby. Tahoe Resources’ CEO Kevin MacArthur sees “amazing community support for the project.”

Morales suggests the company is not “really giving us their money as a non-strings attached gift,” but receives large tax deductions from the Guatemalan government. Tahoe’s social investments “come from the (taxes paid by) 14 million inhabitants of Guatemala.”

Mine attacked, indigenous opponents kidnapped

On Jan. 12, 2013, an organized group of hooded men bearing assault rifles and carrying Molotov cocktails assaulted the mine site in the middle of the night. The attackers killed two mine security guards and injured five working under Rotondo’s command.

Two days after the attack, Tahoe’s McArthur said, “Our workforce and entire management team are devastated by the deaths and injuries that occurred.” The perpetrators remain unknown.

Two months later, four leaders of a nearby Xinca indigenous community were kidnapped as they returned from a community consultation about the silver mine. Three of them were later released while one was found dead the next day. The identities of the kidnappers remain unknown.

Oscar Morales admits he doesn’t know who was behind the kidnapping, but says it was part of a pattern of attacks by people who “always wear caps, ski-masks and carry lethal weapons.”

Tahoe’s Gostin blames “outside” people — by which he means NGOs — for the rise of violence around Escobal. “That is what NGOs do, they say ‘mining causes violence,’ but they are the ones causing violence in the name of protesting violence,” says Gostin. He would not name the NGOs he believes were responsible.

Amid protests, riots and organized armed attacks, Alberto Rotondo was the man hired by Tahoe Resources to be in charge of security in the Escobal project. Oscar Morales described Rotondo as a muscular white man acting self-assured around town. On one occasion, Morales encountered Rotondo and two security guards with automatic rifles blocking a road in San Rafael Las Flores, “stopping the traffic so cars wouldn’t pass in front of the company’s office.”

Alberto Rotondo

Alberto Rotondo, former security manager for Tahoe Resources-owned Escobal mine, is alleged to have been recorded incriminating himself in the shooting of protestors. Photo by Giles Clarke.

Rodrigo Baires, a Salvadorian investigative journalist who wrote a five-part series about the Escobal mine for Plaza Pública, says he discovered a LinkedIn.com profile for a former Peruvian navy captain named Alberto Rotondo. The document says he specializes in mining operations, physical security, risk management and executive protection. According to the profile, Rotondo received training in the U.S. Army’s JFK Special Warfare School in North Carolina where he learned about psychological operations, civil affairs and terrorism in low intensity conflicts. It also states Rotondo studied political theory, international relations and communications in the Inter American Defense College in Washington D.C.

Baires concludes that Rotondo also worked for the Peruvian state during the 1990s when that country’s military and rebel organizations committed crimes against humanity while fighting each other.

Shooting incident at mine’s gate

On the afternoon of April 27, 2013, Erick Fernando Castillo and others demonstrators against the Escobal project approached the mine’s gate. Castillo saw Rotondo inside the mine talking on his cell phone as he climbed out of a pickup truck, 50 to 70 security guards standing near him. Castillo says he then heard Rotondo yelling to his men, “‘Let’s get rid of this garbage!'” Castillo says Rotondo and the guards immediately “took out their arms and started to shoot.”

Castillo and roughly 20 protestors at the mine’s gate ran when they heard the first shots. But he stopped to help his 18-year-old cousin Luis García whose face was bleeding. “That is when I got hit,” says Castillo. “I just felt like a little burn in my leg.” Castillo managed to walk with his cousin to a nearby land lot.

As Castillo’s leg started to bleed, he realized his father Artemio Castillo had also been shot. Artemio Castillo says he suffered 14 wounds in his back and legs caused both by rubber bullets and live ammunition. Of six people shot and taken to hospitals, all survived, but Erick Fernando Castillo’s younger cousin Luis García needed facial reconstruction surgery.

Journalist Baires gathered testimony from eyewitnesses. They told him that after the shooting, officers in a Guatemalan police vehicle arrived, cleaned up bloodstains, picked up bullet cartridges and left before the attorney general’s office arrived to do the crime scene management.

Three days after the incident, Rotondo was arrested in Guatemala’s La Aurora International Airport as he was about to leave the country for Peru.

Rotondo’s lawyer Jose Toledo Paz says his client wasn’t present at the mine’s gate on the April 27 afternoon, in contradiction to Castillo’s recollection. He would not say where Rotondo was at the moment of the shooting.

Nor, says Paz, did Rotondo give an order to shoot. Rotondo, he says, was an “external advisor” who provided “security suggestions” to the mine. But the mine’s security guards who were “provoked” by protestors with rocks and machetes actually work for a Guatemalan private security company that has nothing to do with his client. “Those guards that repelled that illegal attack do not obey orders from Rotondo, they obey orders from their (security company) superiors.”

What about the wiretaps that allegedly incriminate Rotondo directly in the shooting incident? Paz would not deny or admit they exist.

State of siege

In the days following the shooting, the violence increased in San Rafael. On April 29, an angry mob of Xinca people took 23 Guatemalan police officers hostage on their reserve.

The Xinca group disarmed the police and demanded cancellation of the mine’s license. That same night in San Rafael a different group of 50 hooded people burned five houses rented for the mine’s workers and set four vehicles ablaze. The police responded to the fire but were met with gunfire. One policeman was killed.

Guatemala’s president Otto Pérez Molina responded by declaring a stage of siege in the region. A former top general, he suspended constitutional rights and sent more than 2,500 soldiers to the region.

Oscar Morales says he thought the government was trying to destroy the resistance against the mine, so he left his home and went into hiding. Then his house was raided by “around 300 soldiers and cops. They told my wife to tell me to stop messing with the mine.”

Morales returned home only after the state of siege was lifted 25 days later. That marked the end of local organizing to stop Tahoe from extracting silver in San Rafael Las Flores.

Prosecution of Tahoe’s former security manager

Tahoe Resources denies its security guards used live ammunition in the shooting incident. Instead, when a protest involving people “armed with machetes” turned hostile, the security force used tear gas and rubber bullets to repel the demonstrators at the mine gate. “Only non-lethal measures were taken by our security,” assured CEO McArthur. “We regret any injuries caused by rubber bullets, but we take the protection of our employees and the mine seriously.”

That’s not the version of events given by the director of CALAS, the Guatemalan human rights NGO working with the people shot at the mine’s gate. Dr. Yuri Melini said that an official analysis from the Guatemalan government’s National Forensic Sciences Institute contradicts McArthur. “The evidence is conclusive. Those were not rubber bullets. They were shotgun pellets and 9 mm caliber bullets,” he says.

Rotondo’s lawyer Paz calls that assessment a “tremendous” mistake he will prove in court when given the opportunity.

San Rafael Las Flores

Inhabitants of San Rafael Las Flores, Guatemala, are concerned about the mine’s potential impact for the water sources and its consequences for cattle ranching and agriculture. Photo by Giles Clarke.

In January, claiming ill health, Rotondo failed to attend a Guatemalan hearing that would have remanded him to prison awaiting trial. The judge declared Rotondo in contempt and ordered his arrest. Instead, Rotondo was transported by ambulance to Guatemala City’s military hospital where he remains being treated for kidney failure problems. “He only has one kidney and suffers from high blood pressure,” says Rotondo’s lawyer.

None of the accusations against Rotondo have been proven in court. The case will be tried after a high court resolves a motion against the judge set by the victims’ lawyer claiming the judge sympathizes with Rotondo.

‘With shots they will learn’

Eisenbrandt expects Rotondo to be found guilty in a Guatemalan court for the shooting incident.

He is bringing suit against Tahoe Resources in the B.C. Supreme Court, he says, in order to “seek justice against a company that is responsible for what happened. If a company would not have been allowed to do something like this in Canada, they shouldn’t be able to do it outside of Canada either.”

None of the allegations against Tahoe Resources in Eisenbrandt’s suit has been proven in court, and Tahoe Resources has continuously denied culpability.

The suit filed today marks another milestone in a legal journey that began in May of last year when Erick Fernando Castillo sat in court hearing a recorded voice growl not only “With shots is that they learn,” but also “Fuck them! Those starving people coming here, fuck! Go to make a living somewhere else, get a job!”

As Castillo, sitting next to his father, listened, he felt, he admits, “rancour in my heart.”

Rotondo’s lawyer Toledo Paz says he cannot confirm if the wiretaps contain Rotondo’s voice because the prosecutor hasn’t provided him an official copy of the tapes.

Paz does say, “In Guatemala people are foul-mouthed. Those are expressions many people use. Let me ask: Who died? Who has a bullet wound? How can I order to kill certain people with rubber bullets? That is impossible.”

By the end of the hot afternoon spent in the Barberena courtroom last May, Fernando Castillo was wracked with pain in his leg. The throbbing grew so bad he could not walk. He was taken to the hospital where he was treated and released. The pain persisted, and later a doctor poring over an x-ray discovered something. “I got screwed,” says Castillo. “Eleven days after, I still had the bullet inside me.”

Castillo says he doesn’t remember if the bullet that was taken out of his right leg was a .38 or a nine-millimetre caliber. The slug extracted is now part of the evidence in the Rotondo case.

On May 1, 2013, Tahoe Resources described Rotondo as “Tahoe’s Guatemala security manager.” After the hearing, with the prosecution set to move forward, the company referred to Rotondo as “the security management contractor.” Tahoe also said it expected Rodondo “to be released when the government investigation is complete.” In July, the company stated Rotondo “is no longer engaged with the company.”

Tahoe Resources declined to comment on anything related to Alberto Rotondo.  [Tyee]

Read more: Energy, Rights + Justice,

SOURCE: http://thetyee.ca/News/2014/06/18/Tahoe-Suit/?utm_source=fb-page-editor-post&utm_medium=fb-page&utm_campaign=fb-June