Participatory Rights in the Ontario Mining Sector: An International Human Rights Perspective

1. INTRODUCTION 2. ENVIRONMENTAL DEMOCRACY--ASSESSING LEGITIMACY IN THE MINING SECTOR 3. THE ONTARIO MINING ACT (AS AMENDED) 4. THE RIGHT TO PARTICIPATION IN ENVIRONMENTAL DECISION-MAKING 5. THE RIGHT OF FREE PRIOR AND INFORMED CONSENT AND THE DUTY TO CONSULT AT INTERNATIONAL LAW 6. FPIC, THE DUTY TO CONSULT AND CANADIAN LAW 7. THE RIGHT OF PEACEFUL ASSEMBLY AT INTERNATIONAL LAW 8. THE RIGHT TO PEACEFUL PROTEST IN THE CANADIAN MINING SECTOR 9. CONCLUSION meek shall inherit the Earth, but not its mineral rights. --John Paul Getty In November 2006, the Canadian government completed a series of National Roundtables on Corporate Social Responsibility (CSR) and the Canadian Extractive Sector in Developing Countries. The roundtables were held pursuant to the recommendations of a report of the Standing Committee on Foreign Affairs and International Trade calling on the federal government to initiate a multistakeholder process with the goal of strengthening existing corporate social responsibility programmes and policies and developing new programmes and policies for Canadian extractive industries operating outside of Canada, in developing countries. (1) The roundtables Advisory Group, composed of members from the private sector, academia, and NGOs, produced a consensus report released in March 2007 that recommended to the Canadian government the adoption of a comprehensive CSR framework, including voluntary standards, reporting guidelines, and an accountability mechanism. (2) In March 2009, the Canadian government released its response, rejecting the bulk of the Advisory Group's recommendations and leaving unsettled the question of CSR norms for Canadian companies operating outside Canada. (3) In February 2009 the Hon. John McKay tabled a private member's bill (Bill C-300) which sought to impose accountability on mining, oil, or gas companies that are found to be complicit in violations of human rights or environmental standards in their activities in developing countries. (4) These developments signal a growing domestic concern with respect to the environmental and social impacts of Canadian extractive companies operating extraterritorially. In 2008 Canada was the domicile for seventy-five per cent of the world's largest exploration and mining companies. (5) Of these companies, approximately seventy per cent had plans to operate outside Canada. (6) The Advisory Group Report, the government's response and Bill C-300 are all based on the policy imperative that Canadian corporations operating abroad should comply with the same environmental and social standards to which they are legally bound in Canada, and that these standards are reflective of Canada's international legal obligations, including, in particular, its international human rights obligations. This view is expressed in recent Parliamentary debates (7) and in a bill tabled by the New Democratic Party on 16 June 2008. (8) Recent disputes concerning the lack of public consultation on proposed large domestic mining projects, (9) as well as disputes surrounding aboriginal rights in lands subject to mining claims (10) have highlighted, however, significant human rights concerns associated with Canada's domestic provincial and territorial mining regimes. Canada has some of the highest mineral exploration activity in the world within its own borders. In 2005, nineteen per cent of total global mineral exploration was planned to take place in Canada. (11) In addition, Ontario mines produce one third of Canada's mineral output. (12) Little academic research has been conducted on the human rights impacts of Canadian provincial and territorial mining regimes and, where it has been undertaken, it has focused primarily on environmental issues. (13) Thus while the federal government, the industry, and other members of civil society are focusing on non-mandatory regulation of corporate impacts abroad, and the provincial and territorial governments are beginning to revise their mining regimes, it is pertinent and timely to consider the extent to which international human rights (including indigenous peoples' rights and environmental human rights) are respected and protected in the domestic Canadian mining sector. …

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