Home states that are actively engaged in global mining have considered and rejected calls to regulate the conduct of transnational mining corporations so as to prevent and remedy human rights and environmental harms. This reluctance to regulate is often expressed as a concern that extraterritorial regulation will conflict with the sovereignty of foreign states. This paper argues that the public international law of jurisdiction is permissive of home state regulation that can be justified under the nationality or territoriality principles, provided that there is no true conflict with an exercise of host state jurisdiction. In the human rights and environment contexts, it is more likely that home state regulation would result in concurrent but not conflicting jurisdiction, particularly where the regulation is designed to further shared international norms. Beyond permissibility, this paper argues that international sustainable mineral development law imposes an emerging obligation on all states, including home states, to ensure that the three pillars of public participation rights are respected. These rights are access to information, public participation in decision-making, and access to justice in environmental matters, and they are formulated in the global mining context as a right of indigenous and local communities to free, prior and informed consent. Support for the existence of such a home state obligation may be found in the recommendations of international human rights treaty bodies, and in the work of the International Law Commission on both state responsibility, and the prevention and allocation of loss for transboundary harm.
In November 2004, a delegation of community members from the municipality of Siocon, Zamboanga del Norte, in the Philippines came to Canada. The purpose of their visit was to raise concerns about alleged violations of environmental and human rights at the Canatuan mining project on the island of Mindanao, owned by Canadian mining company TVI Pacific, (1) and related concerns about Canadian government support for the mine. (2) In March 2005, two community members returned to Canada to testify before the Parliamentary Subcommittee on Human Rights and International Development (Subcommittee) of the Standing Committee on Foreign Affairs and International Trade (SCFAIT). (3) The Subcommittee then devoted much of the rest of its session to exploring the problems of Canadian mining companies in developing countries. (4)
This was not the first time that the Subcommittee had heard about problems with Canadian mining companies in developing countries. (5) In June 2005, the SCFAIT adopted a report of the Subcommittee (SCFAIT Report) and presented it to the Canadian Parliament. (6) The SCFAIT Report states as fact that
mining activities in some developing countries have had adverse effects on local communities, especially where regulations governing the mining sector and its impact on the economic and social wellbeing of employees and local residents, as well as on the environment, are weak or non-existent, or where they are not enforced. (7) The Subcommittee then expressed concern that "Canada does not yet have laws to ensure that the activities of Canadian mining companies in developing countries conform to human rights standards." (8)
The Subcommittee recommended that Canada put in place stronger incentives to encourage compliance with international human rights standards, as well as stronger monitoring and complaints mechanisms. (9) The SCFAIT Report also called for "clear legal norms" to ensure that Canadian corporations and residents were held accountable for environmental and human rights violations. (10) However, in October 2005, the government tabled a response which rejected many of the recommendations in the SCFAIT Report. (11) The Government Response noted that the international community is "still in the early stages of defining and measuring" corporate social responsibility (CSR), "particularly with regard to human rights." (12) The recommendation to establish clear legal norms to hold Canadian corporations accountable was rejected, (13) with a commitment only to examining the "best practices of other states." (14) While the Government Response did acknowledge that states are primarily responsible for the promotion and protection of human rights and the environment, (15) it also stated that Canadian law does not generally provide for "extraterritorial application." (16) Moreover, to do so could raise several problems including "conflict with the sovereignty of foreign states; conflicts where states have legislation that differs from that of Canada; and difficulties with Canadian officials taking enforcement action in foreign states." (17)
This Article argues that, despite the concerns expressed in the Government Response, Canada and other home states should have laws to ensure that the international operations of home state extractive companies do not violate international human rights and environmental norms, and to ensure that any local communities impacted by such violations have access to legal recourse in home state courts. Part II will outline how Australia and Canada have approached this question. Part III will argue that home state concerns that the exercise of jurisdiction over transnational corporate conduct violates jurisdictional principles of public international law are misplaced. Home state jurisdiction is clearly permissible. Part IV will examine whether, beyond permissibility, international sustainable mineral development law imposes an obligation on all states, including home states, to both prevent and remedy harm to local communities.
HOME STATE RELUCTANCE
Canada is not the first home state to question whether or not it should enact laws to address human rights and environmental concerns relating to the global mining activities of home state corporations. (18) In 2000 and 2001, the Australian Parliamentary Joint Statutory Committee on Corporations and Securities held hearings (19) to determine whether to enact a proposed Corporate Code of Conduct Bill 2000 ("Bill 2000"). (20) The object of Bill 2000 was to impose environmental, employment, health and safety and human rights standards on the conduct of Australian or related corporations operating in a foreign country. (21) It was brought to the Committee's attention that the purpose of Bill 2000 was not to impose Australian standards on other countries but rather to ensure that Australian and Australian-related companies acted in compliance with fundamental international law principles of human rights and environmental protection. (22) Nevertheless, the Committee concluded that the standards were Australian and could only be interpreted as implying that local standards are inferior. (23) Bill 2000 was then rejected as the legislation would be viewed overseas as "arrogant, patronising, paternalistic and racist." (24)
Bill 2000 would have allowed persons who have suffered loss or damage or who are reasonably likely to suffer loss or damage from activities of Australian corporations overseas to bring actions in Australian Federal Court seeking injunctions or compensation. (25) The fact that existing Australian law already permitted some similar types of actions contributed to the conclusion that at least parts of Bill 2000 were unnecessary. (26) Under Canadian interpretations of private international law doctrines, however, it is less likely that such an action would succeed. (27) Moreover, Australia took steps to investigate allegations of international criminal conduct by Anvil Mining Company regarding the facilitation of egregious rights-violating military conduct in the Democratic Republic of the Congo. (28) While Canada has similar legislation in place implementing its obligations under the statute of the International Criminal Court, Canada does not appear to have initiated any similar investigation, even though Anvil Mining is incorporated in Canada. (29) The Canadian government has also intervened twice (30) in support of Talisman Energy in New York state private law litigation under the Alien Tort Claims Act (ATCA) (31) that alleges Talisman was complicit with the Sudanese government in violations of international criminal law. (32)
While the Government Response rejected many of the recommendations in the SCFAIT Report, it did embrace with enthusiasm the idea of holding a multi-stakeholder public consultation on the problems of Canadian mining companies operating in developing countries. (33) The proposed outcome of the process was broadened to a commitment to providing the SCFAIT with a report presenting recommendations for not only the Canadian government, but also "NGOs, labour organizations, business and industry associations." (34) In essence, the government committed to participating in a process in which its role was equal to that of other stakeholders, rather than acknowledging that as a state, the government of Canada possesses the authority--and has a responsibility--to govern in the public interest. (35)
The National Roundtables on Corporate Social Responsibility and the Canadian Extractive Sector in Developing Countries were held from June to November 2006 in four Canadian cities. (36) A governmental steering committee worked closely with an Advisory Group composed of representatives of Canadian industry groups and civil society. (37) In March 2007, the Advisory Group issued a report replete with proposals for Canadian government action. (38) However, even the Advisory Group could not agree on whether Canada should implement legislation to ensure that corporate wrong-doers are held legally accountable in Canadian courts. (39) One year later, there has still been no indication from the Canadian government as to whether it plans to take any action in light of the Advisory Group Report. In the meantime, the Canadian government has joined the Extractive...