Editorial: CSR office shoots another blank

There have been a couple of new precedents set in Canada’s evolving corporate social responsibility (CSR) landscape.

• Canada’s Office of the Extractive Sector CSR Counsellor Marketa Evans released a final report on the second-ever case brought to her attention, regarding First Quantum Minerals’ wholly owned Guelb Moghrein copper-gold mine in western Mauritania.

Based in Toronto, Evans’ small office was created by the federal government with an announcement in March 2009, and has been operating since March 2010 under the umbrella of Foreign Affairs and International Trade Canada.

Broadly speaking, the office’s mandate is to help Canadian mining and oil and gas companies meet their social and environmental responsibilities when operating abroad. The office is theoretically receptive to complaints from around the world regarding the actions of Canadian resource companies, and can enter into an advisory and mediation role if both sides in any dispute agree to it.

In the past, the office has been criticized for being toothless in its policing of any misbehaving Canadian companies, and structured in such a way that it could unfairly legitimize the most baseless of damaging claims against Canadian businesses operating abroad. Ultimately, the office has no mandate to render judgments on parties’ claims, and can only record and repeat the views and opinions of the parties involved.

Regarding Guelb Moghrein, the office had received a request from Ahmed Mohamed Lemine on behalf of a nearby community with his concerns relating to environmental issues, labour issues and stakeholder engagement.

In the end, the CSR counsellor closed the First Quantum case herself, stating that a lack of knowledge about the operations and local dispute-resolution mechanisms on the part of Lemine “at least in part . . . lay at the root of the request,” and that the best place for him to seek dispute resolution was at the local level, which had so far not been tried. The counsellor emphasized that her office is not a “first-resort mechanism” for addressing local grievances.

The CSR counsellor did compliment First Quantum for having “consistently demonstrated its good-faith efforts to deal with the issues and share information.” Law firm Fasken Martineau had represented First Quantum in the case.

The office’s first case didn’t amount to much either, with Excellon Resources having pulled out last year from a review process dealing with the complaints of an Excellon employee fired for sleeping on the job at the La Platosa mine in Mexico. The worker claimed he’d been fired for his involvement in organizing a rival union at the site.

• At the end of March, Quebec’s Court of Appeal took a common-sense approach and dismissed the case of Anvil Mining Ltd. v. Association canadienne contre l’impunité (2012 QCCA 117).

The Association canadienne contre l’impunité (ACCI) is a Quebec-based group of five non-governmental organizations focused on human rights, and it had launched a class-action lawsuit against Anvil before the Quebec Superior Court on behalf of civilian victims of war in Kilwa in the Democratic Republic of the Congo’s southeastern Katanga province.

The ACCI had alleged that Anvil provided logistical assistance in the form of aircraft, trucks, drivers, gasoline and food to the DRC’s military, which allegedly committed war crimes and crimes against humanity while fighting secessionist forces in the area.

The Superior Court had allowed the ACCI’s class action to go forward, but the Quebec Court of Appeal overturned the decision in a judgment dated Jan. 24, 2012, that declared Quebec courts do not have jurisdiction over the action.

In the case of Anvil, this was a Toronto Stock Exchange-listed company with a head office in Australia and mining operations in the DRC. Its Montreal office housed a single investor relations professional with no role in Anvil’s management or operations, and the office did not even exist at the time of the alleged incident in October 2004. Anvil was acquired by China’s Minmetals in April 2012.

The court also noted that the plaintiffs had previously tried and failed to convince lawyers in Australia to take up the case.

Undeterred, the ACCI says it intends to file an application for leave to appeal to the Supreme Court of Canada.